SOCIAL JUSTICE SOCIETY (SJS), petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), respondents.

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ATTY. MANUEL J. LASERNA, JR., petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.

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AQUILINO Q. PIMENTEL, JR., petitioner
vs.
COMMISSION ON ELECTIONS, respondents.

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows:

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10, 2004 elections,¹ filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self - incrimination, and for being contrary to the due process and equal protection guarantees.

First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.²

It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the statute sought to be reviewed.³ But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.⁴ To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.⁵

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.⁶ There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power?

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate,⁷ or alter or enlarge the Constitution.

Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.⁸ In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.⁹

Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise:

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.¹¹ The substantive constitutional limitations are chiefly found in the Bill of Rights¹² and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.¹³

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug - free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non - compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug - testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever.

While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti - drug abuse policies, programs and projects."¹⁴ The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.¹⁵

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure¹⁶ under Sec. 2, Art. III¹⁷ of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state - decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),¹⁸ both fairly pertinent US Supreme Court - decided cases involving the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment¹⁹ of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth²⁰ and 14th Amendments and declared the random drug - testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug - testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug - testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well - being of the people,²¹ particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited not just upon the users, but upon the entire student body and faculty.²² Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,"²³ has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.²⁴ Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration:

The essence of privacy is the right to be left alone.²⁶ In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. ²⁷ And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.²⁸ Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.²⁹

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion.³⁰ And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.³¹ In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees--and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?³²

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.³³ In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;³⁴ that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results."³⁵ Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.³⁶ To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.³⁷ And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.³⁸

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape.³⁹ In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here.

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.⁴⁰ To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.
Associate Justice

WE CONCUR:

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

FIRST DIVISION

MONICO V. JACOB and CELSO L. LEGARDA, Petitioners,
vs.
HON. SANDIGANBAYAN FOURTH DIVISION and THE OFFICE OF THE OMBUDSMAN, Respondents.

D E C I S I O N

This is a Petition for Certiorari under Rule 65 of the Rules of Court for the nullification of the Resolutions dated February 4, 2002¹ of the Sandiganbayan Special Fourth Division and December 12, 2003² of the Sandiganbayan Fourth Division. In its Resolution dated February 4, 2002, the Sandiganbayan Special Fourth Division set aside the order to dismiss Criminal Case Nos. 25922-25939, among other cases, verbally issued by Associate Justice Narciso S. Nario (Justice Nario), Chairman of the Sandiganbayan Fourth Division, during the court session held on August 20, 2001;³ while in its Resolution dated December 12, 2003, the Sandiganbayan Fourth Division denied the motions for reconsideration of the petitioners and other accused.

The following facts are duly established from the pleadings of the parties:

From 1993 to 1997, Petron Corporation (Petron), a corporation engaged in the business of refining, marketing and distribution of petroleum products, received Tax Credit Certificates (TCCs) by assignment from 18 private firms⁴ registered with the Board of Investments (BOI). The TCCs were issued by the One Stop Shop Inter-Agency Tax Credit & Duty Drawback Center (OSS), an office under the Department of Finance (DOF), created by virtue of Administrative Order No. 266 dated February 7, 1992. Petron used the assigned TCCs to pay its excise tax liabilities.

The practice was for the BOI-registered firms to sign the Deeds of Assignment upon delivery of the TCCs to Petron. Petron then forwarded said documents to the OSS, with a request for authorization to use said TCCs to pay for its excise tax liabilities. DOF Undersecretary Antonio P. Belicena (Belicena) approved the request of Petron through the issuance of Tax Debit Memoranda (TDM) addressed to the Collection Program Division of the Bureau of Internal Revenue (BIR). The BIR Collection Program Division accepted the TCCs as payment for the excise tax liabilities of Petron by issuing its own TDM.⁵ The control numbers of the BIR-TDM were indicated on the back of the TCCs, marking the final utilization of the tax credits.⁶

However, the Fact Finding and Intelligence Bureau (FFIB) of the Office of the Ombudsman eventually found that the aforementioned transactions involving the TCCs were irregular and violative of the Memorandum of Agreement dated August 29, 1989 between the BOI and the DOF, which implemented Article 21 of Executive Order No. 226, otherwise known as the Omnibus Investments Code of 1987.⁷

After the termination of the requisite preliminary investigation, the Office of the Ombudsman issued a Resolution dated March 27, 2000 finding probable cause against several public officers and private individuals, including petitioners Monico V. Jacob (Jacob), President, and Celso L. Legarda (Legarda), Vice-President and General Manager for Marketing, both of Petron, for perpetrating the so-called "tax credit scam." On April 10, 2010, the Office of the Ombudsman filed a total of 62 Informations, 18 of which, docketed as Criminal Case Nos. 25922-25939, were against DOF Undersecretary Belicena, OSS Deputy Executive Director Uldarico P. Andutan, Jr., petitioners and other Petron officials, and officers of the BOI-registered firms which assigned the TCCs to Petron, charging them with violation of Section 3(e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Petitioners provided an undisputed account of the events that subsequently took place before the Sandiganbayan:

On April 14, 2000, petitioners and the four other Petron officers who were similarly charged filed a Motion for Reinvestigation [with the Office of the Ombudsman].

On 17 April 2000, the [Sandiganbayan Fourth Division] issued an Order giving the prosecution a period of sixty (60) days within which –

… to re-assess its evidence in these cases and to take appropriate action on the said motion for reconsideration of accused movants and to inform the Court within the same period as to its findings and recommendations including the action thereon of the Honorable Ombudsman.

Sixty (60) days passed but the Office of the Ombudsman did not even bother to submit a report on the status of the motions for reconsideration. Months passed, and then, AN ENTIRE YEAR PASSED. There was still nothing from the respondent Office of the Ombudsman.

In the meantime, petitioner Jacob was arraigned on 1 June 2000 while petitioner Legarda was arraigned on 18 May 2001.

On March 20, 2001, in view of a significant development in the Shell cases (then pending with the 5th Division of [the Sandiganbayan]), petitioners and other accused Petron officials filed a Motion to Resolve with the Office of the Ombudsman. In the said motion, petitioners cited the Memorandum dated 30 January 2001 issued by Special Prosecutor Leonardo P. Tamayo upholding the dropping of the charges against Shell official Pacifico Cruz on the ground that there was no sufficient evidence to prove that he was part of the conspiracy. Petitioners asserted that since their situation/alleged participation is similar to that of Mr. Pacifico Cruz, they should similarly be dropped from the criminal cases. Despite this, the respondent Office of the Ombudsman took no action.

Considering the time that had lapsed, the [Sandiganbayan Fourth Division], at the hearing on 1 June 2001, expressly warned the prosecution that should it fail to resolve the reconsideration/investigation, it would order the dismissal of the cases or require the prosecution to show cause why it should not be cited for contempt.

In its Resolution dated 26 June 2001, the [Sandiganbayan Fourth Division] in fact denied the motion of the prosecution for the resetting of the scheduled arraignment and pre-trial on 2 July 2001 "it appearing that the Reinvestigation of these cases has been pending for more than one (1) year now and the court cannot countenance the unreasonable delay attributable to the plaintiff."

In spite of the denial of their motion, the prosecution still failed to submit its report to the [Sandiganbayan Fourth Division] during the 2 July 2001 hearing. Instead they asked for a period of seven (7) more days to resolve the motions for reconsideration. The arraignment (of the other accused) and pre-trial therefore had to be reset again to 17 July 2001.

One day before the schedule hearing, the prosecution filed a Manifestation requesting the cancellation of the arraignment and pre-trial scheduled the next day on the ground that the motions for reconsideration/reinvestigation were still pending resolution.

Once again, [the Sandiganbayan Fourth Division] gave the prosecution another chance. During the hearing on 17 July 2001, the [Sandiganbayan 4th Division] directed the prosecution, through Prosecutor Orlando Ines, to terminate the reinvestigation within a period of one (1) more month. The arraignment and pre-trial were then reset to 20 August 2001.

At the scheduled hearing on August 20, 2001, Prosecutor Orlando Ines, however, again requested for the deferment of the arraignment and pre-trial on the ground that the resolution on the various motions for reconsideration/reinvestigation were still pending approval by the Office of the Ombudsman.

In all the hearings conducted in the cases the defense verbally and consistently invoked their right to speedy trial and moved for the dismissal of the cases. In the course of more than one year, however, the [Sandiganbayan 4th Division] kept affording the prosecution one chance after another. The sixty days granted to the prosecution became more than four hundred days – still, there was no resolution in sight.

Thus on 20 August 2001, compelled by its duty to uphold the fundamental law, the [Sandiganbayan Fourth Division, through its Chairman, Justice Nario] issued a verbal order dismissing the cases. The dismissal was duly recorded in the minutes of the hearing of the said date which was attested to by the Clerk of Court and signed by the parties.

On 24 August 2001, the prosecution filed a Motion for Reconsideration with the following prayer: "WHEREFORE, the undersigned Ombudsman Prosecutors prayed (sic) that the Order issued by the Honorable Court for the summary dismissal of all the graft and estafa charges aforecited be SET ASIDE."

On August 31, 2001, the [Sandiganbayan Fourth Division] issued an Order taking cognizance of the Motion for Reconsideration filed by the prosecution and requiring the accused to file their respective comments thereon within five (5) days.

On 4 February 2002, OR SIX (6) MONTHS after [Justice Nario] issued the verbal order of dismissal, the [Sandiganbayan Special Fourth Division] issued an Order setting aside said verbal order.

x x x x

In the 4 February 2002 Resolution, this time a Division of five justices (two of whom dissented) rendered a Resolution stating:

WHEREFORE, the dismissal of these cases orally ordered in open court by the Chairman of the Fourth Division during its court session held on August 20, 2001, and reiterated in his subsequent ponencia, is hereby set aside.⁸ (Citations omitted.)

The Sandiganbayan Special Fourth Division gave the following reasons for overruling Justice Nario’s verbal order dismissing the criminal cases against the accused in the alleged tax credit scam:

In the present case, (1) there is already a delay of the trial for more than one year now; (2) but it is not shown that the delay is vexatious, capricious and oppressive; (3) it may be that, as stated in the herein dissented Resolution, "at the hearings conducted in these cases, the defense orally, openly and consistently asked for the dismissal of these cases"; however, these oral manifestations were more of "knee-jerk reactions" of the defense counsel in those hearings everytime the prosecution requested for postponement than anything else as said defense counsel did not seriously pursue the dismissal of these cases, such as by reducing their "request" in a formal written motion to dismiss and/or insisting that the court formally rule on their request for dismissal and go on certiorari if denied; and (4) considering the nature and importance of the cases, if there is any prejudice that may have resulted as a consequence of the series of postponements, it would be more against the government than against any of the accused; however, be that as it may, none of the herein accused has come out to claim having been thus prejudiced.⁹

On February 26, 2002, petitioners, together with four other co-accused Petron officials, filed a Motion for Reconsideration¹⁰ of the February 4, 2002 Resolution of the Sandiganbayan Special Fourth Division. Other accused also filed their motions for reconsideration and motions to quash/dismiss. The prosecution expectedly opposed all such motions of the accused.

In an Omnibus Resolution dated December 12, 2003, the Sandiganbayan Fourth Division ruled in the prosecution’s favor and denied all the motions filed by the accused, to wit:

Wherefore, premises considered, this court issues an Omnibus Resolution denying all the above-described Motion to Quash for lack of merit.

Hence, petitioners come before us via the instant Petition for Certiorari averring grave abuse of discretion on the part of the Sandiganbayan Special Fourth Division, specifically:

To recall, Justice Nario, as the Chairman of the Sandiganbayan Fourth Division, ordered the dismissal of all criminal cases arising from the purported tax credit scam on the ground that the accused, including petitioners, had already been deprived of their right to a speedy trial and disposition of the cases against them. Petitioners assert that the Sandiganbayan gravely abused its discretion in reversing Justice Nario’s order of dismissal of Criminal Case Nos. 25922-25939 because such reversal violated petitioners’ constitutional right against double jeopardy.

An accused’s right to "have a speedy, impartial, and public trial" is guaranteed in criminal cases by Section 14(2), Article III¹² of the Constitution. This right to a speedy trial may be defined as one free from vexatious, capricious and oppressive delays, its "salutary objective" being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose. Intimating historical perspective on the evolution of the right to speedy trial, we reiterate the old legal maxim, "justice delayed is justice denied." This oft-repeated adage requires the expeditious resolution of disputes, much more so in criminal cases where an accused is constitutionally guaranteed the right to a speedy trial.¹³

Hence, the Revised Rules on Criminal Procedure also include provisions that ensure the protection of such right. As we presented in Uy v. Hon. Adriano¹⁴:

Section 1(h), Rule 115 of the Revised Rules of Criminal Procedure provides that the accused is entitled to a speedy, impartial and public trial. Section 2, Rule 119 of the said Rules provides that trial, once commenced, shall be continuous until terminated:

Sec. 2. Continuous trial until terminated; postponements. – Trial, once commenced, shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court.

The time limitations provided under this section and the preceding section shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial.

However, any period of delay resulting from a continuance granted by the court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice is served by taking such action outweigh the best interest of the public and the accused on a speedy trial, shall be deducted.

The trial court may grant continuance, taking into account the following factors:

In addition, no continuance under section 3(f) of this Rule shall be granted because of congestion of the court’s calendar or lack of diligent preparation or failure to obtain available witnesses on the part of the prosecutor.¹⁵

We further emphasized in Uy that "speedy trial" is a relative term and necessarily a flexible concept. In determining whether the right of the accused to a speedy trial was violated, the delay should be considered, in view of the entirety of the proceedings. Indeed, mere mathematical reckoning of the time involved would not suffice as the realities of everyday life must be regarded in judicial proceedings which, after all, do not exist in a vacuum.¹⁶

Corpuz v. Sandiganbayan¹⁷ is a case originating from exactly the same factual background as the case at bar. Therein petitioners Marialen C. Corpuz and Antonio H. Roman, Sr. were officers of FILSYN Corporation, one of the BOI-registered firms that assigned TCCs to Petron; and were among the accused in Criminal Case No. 25922. They filed a separate Petition for Certiorari before us assailing the Resolutions dated February 4, 2002 of the Sandiganbayan Special Fourth Division and December 12, 2003 of the Sandiganbayan Fourth Division.

We expounded more extensively in Corpuz on the right of the accused to a speedy trial and disposition of the case against him, thus:

The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to prevent the oppression of the citizen by holding criminal prosecution suspended over him for an indefinite time, and to prevent delays in the administration of justice by mandating the courts to proceed with reasonable dispatch in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a case is violated only when the proceeding is attended by vexatious, capricious and oppressive delays. The inquiry as to whether or not an accused has been denied such right is not susceptible by precise qualification. The concept of a speedy disposition is a relative term and must necessarily be a flexible concept.

While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent.¹⁸ (Emphases ours.)

We went on to lay down in Corpuz the test for determining whether an accused was indeed deprived of his right to a speedy trial and disposition of the case against him:

In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant’s assertion of his right; and (d) prejudice to the defendant. Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is subjected to public obloquy.

Delay is a two-edge sword. It is the government that bears the burden of proving its case beyond reasonable doubt. The passage of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts or the prosecutor, nor contemplate that such right shall deprive the State of a reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the government to sustain its right to try the accused despite a delay, it must show two things: (a) that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably attributable to the ordinary processes of justice.

Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State. For instance, a deliberate attempt to delay the trial in order to hamper or prejudice the defense should be weighted heavily against the State. Also, it is improper for the prosecutor to intentionally delay to gain some tactical advantage over the defendant or to harass or prejudice him. On the other hand, the heavy case load of the prosecution or a missing witness should be weighted less heavily against the State. Corollarily, Section 4, Rule 119 of the Revised Rules of Criminal Procedure enumerates the factors for granting a continuance.¹⁹

In the Petition at bar, Criminal Case Nos. 25922-25939 were filed on April 10, 2000. Petitioner Jacob was arraigned on June 1, 2000, while petitioner Legarda was arraigned on May 18, 2001; with both petitioners pleading not guilty. Since then, there had been no other significant development in the cases since the prosecution repeatedly requested for deferment or postponement of the scheduled hearings as it awaits the result of the reinvestigation of the Office of the Ombudsman. Judge Nario verbally ordered the dismissal of said cases during the hearing on August 20, 2001. Thus, the criminal cases had been pending for about a year and four months by the time they were dismissed by Justice Nario.

The accused, including petitioners, had consistently asked in open court that the criminal cases be dismissed every time the prosecution moved for a deferment or postponement of the hearings.

The prosecution attributed the delay in the criminal proceedings to: 1) the 23 motions for reinvestigation or reconsideration filed by the accused, which was granted by the Sandiganbayan in its April 17, 2000 Order; and 2) the failure of the Office of the Ombudsman to terminate its reinvestigation and submit its report within the 60-day period fixed by the said graft court.

Irrefragably, there had been an undue and inordinate delay in the reinvestigation of the cases by the Office of the Ombudsman, which failed to submit its reinvestigation report despite the lapse of the 60-day period set by the Sandiganbayan, and even more than a year thereafter. That there were 23 Motions for Reinvestigation filed is insignificant. It should be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case. It is simply a chance for the Office of the Ombudsman to review and re-evaluate its findings based on the evidence previously submitted by the parties. The Office of the Ombudsman should have expedited the reinvestigation, not only because it was ordered by the Sandiganbayan to submit a report within a period of 60 days, but also because said Office is bound by the Constitution²⁰ and Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989,²¹ to act promptly on complaints and cases pending before it.

Nevertheless, while the re-investigation by the Office of the Ombudsman delayed the proceedings in Criminal Case Nos. 25922-25939, the said process could not have been dispensed with as it was undertaken for the protection of the rights of petitioners themselves (and their co-accused) and their rights should not be compromised at the expense of expediency.

In Corpuz, we warned against the overzealous or precipitate dismissal of a case that may enable the defendant, who may be guilty, to go free without having been tried, thereby infringing the societal interest in trying people accused of crimes rather than granting them immunization because of legal error.²² Earlier, in People v. Leviste,²³ we already stressed that:

[T]he State, like any other litigant, is entitled to its day in court, and to a reasonable opportunity to present its case. A hasty dismissal such as the one in question, instead of unclogging dockets, has actually increased the workload of the justice system as a whole and caused uncalled-for delays in the final resolution of this and other cases. Unwittingly, the precipitate action of the respondent court, instead of easing the burden of the accused, merely prolonged the litigation and ironically enough, unnecessarily delayed the case – in the process, causing the very evil it apparently sought to avoid. Such action does not inspire public confidence in the administration of justice.²⁴

Thus, even though we acknowledge the delay in the criminal proceedings, as well as the prejudice suffered by petitioners and their co-accused by reason thereof, the weighing of interests militate against a finding that petitioners’ right to speedy trial and disposition of the cases involving them would have justified the dismissal of Criminal Case Nos. 25922-25939. We agree with the Sandiganbayan Special Fourth Division that Justice Nario’s dismissal of the criminal cases was unwarranted under the circumstances, since the State should not be prejudiced and deprived of its right to prosecute the criminal cases simply because of the ineptitude or nonchalance of the Office of the Ombudsman. We reiterate our observations in Corpuz that:

There can be no denying the fact that the petitioners, as well as the other accused, was prejudiced by the delay in the reinvestigation of the cases and the submission by the Ombudsman/Special Prosecutor of his report thereon. So was the State. We have balanced the societal interest involved in the cases and the need to give substance to the petitioners’ constitutional rights and their quest for justice, and we are convinced that the dismissal of the cases is too drastic a remedy to be accorded to the petitioners. The cloud of suspicion may still linger over the heads of the petitioners by the precipitate dismissal of the cases. We repeat -- the cases involve the so-called tax credit certificates scam and hundreds of millions of pesos allegedly perpetrated by government officials in connivance with private individuals. The People has yet to prove the guilt of the petitioners of the crimes charged beyond reasonable doubt. We agree with the ruling of the Sandiganbayan that before resorting to the extreme sanction of depriving the petitioner a chance to prove its case by dismissing the cases, the Ombudsman/Special Prosecutor should be ordered by the Sandiganbayan under pain of contempt, to explain the delay in the submission of his report on his reinvestigation.²⁵

Furthermore, the Sandiganbayan Special Fourth Division did not abuse its discretion in setting aside Justice Nario’s verbal order, which dismissed Criminal Case Nos. 25922-25939, for not only was such order baseless, as we had previously discussed herein; but more importantly, because it is an utter nullity, as we had ruled in Corpuz.

We held in Corpuz that:

In the unanimous Resolution of December 12, 2003, the Sandiganbayan ruled as follows:

In the cases at bar, the dismissal made in open court by the Chairman, which was not reduced in writing, is not a valid dismissal or termination of the cases. This is because the Chairman cannot unilaterally dismiss the same without the approval or consent of the other members of the Division. The Sandiganbayan is a collegiate court and under its internal rules prevailing at the time (Rule XVIII, Section 1(b) of the 1984 Revised Rules of the Sandiganbayan, which is now Section 1(b), Rule VIII of the 2002 Revised Internal Rules of the Sandiganbayan), an order, resolution or judgment, in order to be valid - that is to say, in order to be considered as an official action of the Court itself - must bear the unanimous approval of the members of the division, or in case of lack thereof, by the majority vote of the members of a special division of five.

We agree with the foregoing ratiocination. Section 1, Rule 120 of the Revised Rules of Criminal Procedure, mandates that a judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based. The rule applies to a final order dismissing a criminal case grounded on the violation of the rights of the accused to a speedy trial. A verbal judgment or order of dismissal is a violation of the provision; hence, such order is, in contemplation of law, not in esse, therefore, ineffective. Justice Nario failed to issue a written resolution dismissing the criminal cases for failure of the prosecution to submit its report on the reinvestigation of the cases within the sixty-day period fixed by the graft court. Moreover, the verbal order was rejected by majority vote of the members of the Sandiganbayan Special Division. In fine, there has been no valid and effective order of dismissal of the cases. The Sandiganbayan cannot then be faulted for issuing the assailed resolutions.

Neither are the petitioners entitled to a writ of mandamus to compel the Sandiganbayan to reinstate the cases, considering that the verbal order of Justice Nario as aforestated does not exist at all in contemplation of law.²⁶ (Emphases ours.)

Given that Justice Nario’s verbal order dismissing Criminal Case Nos. 25922-25939 is null and void, and does not exist at all in contemplation of law, it follows that petitioners cannot invoke the constitutional right against double jeopardy.1avvphi1

To substantiate a claim for double jeopardy, the following must be demonstrated:

(1) [A] first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof.

And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) [when] a valid plea [has] been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused.²⁷

In the instant Petition, legal jeopardy has not yet attached since there is so far no valid dismissal or termination of the criminal cases against petitioners.

Finally, the Sandiganbayan Special Fourth Division did not commit grave abuse of discretion nor erred in not considering the glaring lack of evidence against petitioners.

As we pointed out in Rizon v. Desierto²⁸:

Time and again, we have held that a prosecutor does not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged. He merely determines whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the accused is probably guilty thereof, and should be held for trial. A finding of probable cause, therefore, does not require an inquiry as to whether there is sufficient evidence to secure a conviction. It is enough that the prosecutor believes that the act or omission complained of constitutes the offense charged. A trial is intended precisely for the reception of prosecution evidence in support of the charge. It is the court that is tasked to determine guilt beyond reasonable doubt based on the evidence presented by the parties at the trial on the merits.²⁹

Here, there has been no trial yet. Therefore, there has been no occasion yet for the full and exhaustive display of the parties’ evidence. The presence or absence of the elements of the crime is evidentiary in nature that shall be passed upon after a full-blown trial on the merits.

WHEREFORE, there being no showing that the impugned Resolutions dated February 4, 2002 of the Sandiganbayan Special Fourth Division and December 12, 2003 of the Sandiganbayan Fourth Division in Criminal Case Nos. 25922-25939 are tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the instant Petition for Certiorari is DISMISSED for lack of merit.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

JOSE PORTUGAL PEREZ
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

D E C I S I O N

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person can connect to the internet, a system that links him to other computers and enable him, among other things, to:

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater information and facility of communication. But all is not well with the system since it could not filter out a number of persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting defamatory statements against him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can use the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who have access to the internet. For this reason, the government has a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those computer systems, networks, programs, and memories. The government certainly has the duty and the right to prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities violate certain of their constitutional rights. The government of course asserts that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining respondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as crimes and impose penalties for their commission as well as provisions that would enable the government to track down and penalize violators. These provisions are:

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in determining the constitutionality of laws that tend to target a class of things or persons. According to this standard, a legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier applications to equal protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act – accessing the computer system of another without right. It is a universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ tools and techniques used by criminal hackers but would neither damage the target systems nor steal information. Ethical hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors who come into an organization to verify its bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the search, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free card."6 Since the ethical hacker does his job with prior permission from the client, such permission would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

x x x x

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their computer data, electronic document, or electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9 or the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

x x x x

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the reputation, and deprive others from registering the same, if such a domain name is:

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take the name of another in satire, parody, or any other literary device. For example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who registers such name because he claims it to be his pseudo-name and another who registers the name because it happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

x x x x

b) Computer-related Offenses:

x x x x

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right protected by the guarantee against unreasonable searches and seizures.13 But the Court acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and correspondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his residence address, his contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data.19 The law punishes those who acquire or use such identifying information without right, implicitly to cause damage. Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to privacy and correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered from accessing the unrestricted user account of a person in the news to secure information about him that could be published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator.20 As such, the press, whether in quest of news reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

x x x x

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They express fear that private communications of sexual character between husband and wife or consenting adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness,""a special privilege or right granted or conceded," or "a token of love (as a ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces socially tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x between and among two private persons x x x although that may be a form of obscenity to some."23 The understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary to constitute the illegal cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography."26 The law defines prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right, has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

x x x x

(c) Content-related Offenses:

x x x x

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means." Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct, manufacture or create any form of child pornography"33 clearly relates to the prosecution of persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

x x x x

(c) Content-related Offenses:

x x x x

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial communications or spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of computers." Secondly, people, before the arrival of the age of computers, have already been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads. What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

x x x x

(c) Content-related Offenses:

x x x x

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the cybercrime law carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with the higher standard of "actual malice" as a basis for conviction.38 Petitioners argue that inferring "presumed malice" from the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin v. People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard standard used here requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even extreme negligence is not sufficient to establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such element is required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.45 For his defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the accused has been prompted in making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression.48 Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed with which such reactions are disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of the internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law enforcement agencies in enforcing the law.51 The legislature is not required to define every single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within a year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most engaged countries for social networking.56 Social networking sites build social relations among people who, for example, share interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who they are, add other users as friends, and exchange messages, including automatic notifications when they update their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone, depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like,""Comment," or "Share.""Like" signifies that the reader likes the posting while "Comment" enables him to post online his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original "posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this particular user’s posts, enabling them to read the same, and "Following," those whom this particular user is subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is just reposting or republishing another person’s tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog; and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends or Followers, availing themselves of any of the "Like,""Comment," and "Share" reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a case involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently offensive" as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain civil regulations.

x x x x

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any government threat of punishment regarding certain uses of the medium creates a chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly complex web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory story against Armand like "He beats his wife and children," then that should be considered an original posting published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child pornography and facilitates the completion of transactions involving the dissemination of child pornography," does this make Google and its users aiders and abettors in the commission of child pornography crimes?68 Byars highlights a feature in the American law on child pornography that the Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene...whether or not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details. In this way, certain information is forwarded to third parties and unsolicited commercial communication could be disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker may for instance have done all that is necessary to illegally access another party’s computer system but the security employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to usernames and passwords of others but fail to use these because the system supervisor is alerted.72 If Section 5 that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the username and password could not file a complaint against him for attempted hacking. But this is not right. The hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the Solicitor General points out, there exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means. In using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both offenses arise from the same fact, if each crime involves some important act which is not an essential element of the other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave the determination of the correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the computer system as another means of publication.75 Charging the offender under both laws would be a blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded simply because at some prior time the act or omission was but an element of another offense or might just have been connected with another crime.77 Judges and magistrates can only interpret and apply them and have no authority to modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital messages come from, what kind they are, and where they are destined need not be incriminating to their senders or recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be protected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the disclosure of matters normally considered private but then only upon showing that such requirement has a rational relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate concerns of the State against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the government should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities to collect or record "traffic data, in real time, associated with specified communications."83 And this is precisely what Section 12 does. It empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child pornography could use relays of computers to mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-issued search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of privacy. Such right to be left alone has been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of personal matters. It is the latter right—the right to informational privacy—that those who oppose government collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation of privacy must be one society is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users, meaning the large segment of the population who use all sorts of electronic devices to communicate with one another. Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without reasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider, must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the packet fits together with other packets.93 The difference is that traffic data sent through the internet at times across the ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient, only their coded internet protocol (IP) addresses. The packets travel from one computer system to another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s communication’s system will put his voice message into packets and send them to the other person’s cellphone where they are refitted together and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the service provider, the sender reveals his cellphone number to the service provider when he puts his call through. He also reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone users in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain private, such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another over cyberspace except through some service providers to whom they must submit certain traffic data that are needed for a successful cyberspace communication. The conveyance of this data takes them out of the private sphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the probable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it is not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But warrantless search is associated with a police officer’s determination of probable cause that a crime has been committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out, the thing to be searched stands to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and that the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The grant of the power to track cyberspace communications in real time and determine their sources and destinations must be narrowly drawn to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor individuals and place them under surveillance in ways that have previously been impractical or even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society."96 The Court must ensure that laws seeking to take advantage of these technologies be written with specificity and definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and are to be considered private communications. But it is not clear that a service provider has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13, however, the law now requires service providers to keep traffic data and subscriber information relating to communication services for at least six months from the date of the transaction and those relating to content data for at least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process of preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the proper collection, preservation, and use of computer system or data that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken. Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service provider’s storage systems and prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in its storage system. If he wanted them preserved, he should have saved them in his computer when he generated the data or received it. He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so would make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to enforce it.1avvphi1 The second test mandates adequate guidelines or limitations in the law to determine the boundaries of the delegate’s authority and prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect cyber environment and organization and user’s assets.104 This definition serves as the parameters within which CICC should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation."105 This policy is clearly adopted in the interest of law and order, which has been considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

See Concurring & Dissenting Opinion
MARIA LOURDES P. A. SERENO
Chief Justice

See separate dissenting and concurring opinion
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO
Chief Justice

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 9522^[1] (RA 9522) adjusting the country's archipelagic baselines and classifying the baseline regime of nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)^[2] demarcating the maritime baselines of the Philippines as an archipelagic State.^[3] This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),^[4] codifying, among others, the sovereign right of States parties over their "territorial sea," the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),^[5] which the Philippines ratified on 27 February 1984.^[6] Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines^[7] and sets the deadline for the filing of application for the extended continental shelf.^[8] Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens, taxpayers or x x x legislators,"^[9] as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine state's sovereign power, in violation of Article 1 of the 1987 Constitution,^[10] embodying the terms of the Treaty of Paris^[11] and ancillary treaties,^[12] and (2) RA 9522 opens the country's waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the country's nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions.^[13]

In addition, petitioners contend that RA 9522's treatment of the KIG as "regime of islands" not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.^[14] To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and included - its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS III's framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the petition's compliance with the case or controversy requirement for judicial review grounded on petitioners' alleged lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the country's compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the country's security, environment and economic interests or relinquish the Philippines' claim over Sabah.

Respondents also question the normative force, under international law, of petitioners' assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners' prayer for an injunctive writ.

The Issues

The petition raises the following issues:

 1. Preliminarily -

1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional.

On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of legislative prerogative^[15] nor misuse of public funds,^[16] occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners' locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying one of the requirements for granting citizenship standing.^[17]

The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.^[18]

Respondents' submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes,^[19] and indeed, of acts of other branches of government.^[20] Issues of constitutional import are sometimes crafted out of statutes which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law.

RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Country's
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory

Petitioners submit that RA 9522 "dismembers a large portion of the national territory"^[21] because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris' technical description, Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris.^[22]

Petitioners' theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.^[23] UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the world's oceans and submarine areas, recognizing coastal and archipelagic States' graduated authority over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. - The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77).

Even under petitioners' theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the "outermost islands and drying reefs of the archipelago."^[24]

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,^[25] not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty's terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.^[26]

RA 9522's Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines' Claim of Sovereignty
Over these Areas

Petitioners next submit that RA 9522's use of UNCLOS III's regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our territorial claim" over that area.^[27] Petitioners add that the KIG's (and Scarborough Shoal's) exclusion from the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles of territorial waters," prejudicing the livelihood of subsistence fishermen.^[28] A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional deliberations, vis-à-vis the Philippines' obligations under UNCLOS III, belie this view.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III's limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners' argument branding RA 9522 as a statutory renunciation of the Philippines' claim over the KIG, assuming that baselines are relevant for this purpose.

Petitioners' assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the Philippines' total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:^[29]

	Extent of maritime area using RA 3046, as amended, taking into account the Treaty of Paris' delimitation (in square nautical miles)	Extent of maritime area using RA 9522, taking into account UNCLOS III (in square nautical miles)
Internal or archipelagic waters	166,858	171,435
Territorial Sea	274,136	32,106
Exclusive Economic Zone		382,669
TOTAL	440,994	586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.^[30]

Further, petitioners' argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines' continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.^[31]

Although the Philippines has consistently claimed sovereignty over the KIG^[32] and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago,^[33] such that any straight baseline loped around them from the nearest basepoint will inevitably "depart to an appreciable extent from the general configuration of the archipelago."

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating the provision of international law which states: "The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural configuration of the archipelago.^[34] (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III's limits. The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which states that "The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles."
   
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the baselines system. This will enclose an additional 2,195 nautical miles of water.
   
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were later found to be located either inland or on water, not on low-water line and drying reefs as prescribed by Article 47.^[35]

Hence, far from surrendering the Philippines' claim over the KIG and the Scarborough Shoal, Congress' decision to classify the KIG and the Scarborough Shoal as "`Regime[s] of Islands' under the Republic of the Philippines consistent with Article 121"^[36] of UNCLOS III manifests the Philippine State's responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which is above water at high tide," such as portions of the KIG, qualifies under the category of "regime of islands," whose islands generate their own applicable maritime zones.^[37]

Statutory Claim Over Sabah under
RA 5446 Retained

Petitioners' argument for the invalidity of RA 9522 for its failure to textualize the Philippines' claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not
Incompatible with the Constitution's
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.^[38]

Whether referred to as Philippine "internal waters" under Article I of the Constitution^[39] or as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil. -

1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.
   
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.

x x x x

4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein.

(Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.^[40] Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.^[41]

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty's limitations and conditions for their exercise.^[42] Significantly, the right of innocent passage is a customary international law,^[43] thus automatically incorporated in the corpus of Philippine law.^[44] No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage^[45] does not place them in lesser footing vis-à-vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States' archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.^[46] Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States' territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.^[47]

Petitioners' invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies)^[48] must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional rights x x x."^[49] Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran^[50] treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 2^[51]) and subsistence fishermen (Article XIII, Section 7^[52]), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space - the exclusive economic zone - in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.^[53] UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines' Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522.^[54] We have looked at the relevant provision of UNCLOS III^[55] and we find petitioners' reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it weakens the country's case in any international dispute over Philippine maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines' maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.

Corona, C.J., Leonardo-De Castro, Brion,  Bersamin, Peralta, Villarama, Jr., Del Castillo, Abad, Mendoza, and Sereno, JJ., concur.
Velasco, Jr., J., pls. see concurring opinion.
Perez, J., on leave.

---

^[1] Entitled "An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes."

^[2] Entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines."

^[3] The third "Whereas Clause" of RA 3046 expresses the import of treating the Philippines as an archipelagic State:

"WHEREAS, all the waters around, between, and connecting the various islands of the Philippine archipelago, irrespective of their width or dimensions, have always been considered as necessary appurtenances of the land territory, forming part of the inland waters of the Philippines."

^[4] One of the four conventions framed during the first United Nations Convention on the Law of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10 September 1964.

^[5] UNCLOS III entered into force on 16 November 1994.

^[6] The Philippines signed the treaty on 10 December 1982.

^[7] Article 47, paragraphs 1-3, provide:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. (Emphasis supplied)

x x x x

^[8] UNCLOS III entered into force on 16 November 1994. The deadline for the filing of application is mandated in Article 4, Annex II: "Where a coastal State intends to establish, in accordance with article76, the outer limits of its continental shelf beyond 200nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientific and technical advice." (Underscoring supplied)

In a subsequent meeting, the States parties agreed that for States which became bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year period will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009, barely met the deadline.

^[9] Rollo, p. 34.

^[10] Which provides: "The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines."

^[11] Entered into between the Unites States and Spain on 10 December 1898 following the conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the United States "the archipelago known as the Philippine Islands" lying within its technical description.

^[12] The Treaty of Washington, between Spain and the United States (7 November 1900), transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain Convention (2 January 1930) demarcating boundary lines between the Philippines and North Borneo.

^[13] Article II, Section 7, Section 8, and Section 16.

^[14] Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the Constitution.

^[15] Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).

^[16] Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165 Phil. 303 (1976).

^[17] Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring). The two other factors are: "the character of funds or assets involved in the controversy and a clear disregard of constitutional or statutory prohibition." Id.

^[18] Rollo, pp. 144-147.

^[19] See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (dismissing a petition for certiorari and prohibition assailing the constitutionality of Republic Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC, G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare unconstitutional Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic Act No. 9189).

^[20] See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari against the Philippine Senate and nullifying the Senate contempt order issued against petitioner).

^[21] Rollo, p. 31.

^[22] Respondents state in their Comment that petitioners' theory "has not been accepted or recognized by either the United States or Spain," the parties to the Treaty of Paris. Respondents add that "no State is known to have supported this proposition." Rollo, p. 179.

^[23] UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner Magallona himself defined as "a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. x x x x" (Merlin M. Magallona, Primer on the Law of the Sea 1 ^[1997]]) (Italicization supplied).

^[24] Following Article 47 (1) of UNCLOS III which provides:

An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied)

^[25] Under the United Nations Charter, use of force is no longer a valid means of acquiring territory.

^[26] The last paragraph of the preamble of UNCLOS III states that "matters not regulated by this Convention continue to be governed by the rules and principles of general international law."

^[27] Rollo, p. 51.

^[28] Id. at 51-52, 64-66.

^[29] Based on figures respondents submitted in their Comment (id. at 182).

^[30] Under Article 74.

^[31] See note 7.

^[32] Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.

^[33] KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123 nautical west of Zambales.

^[34] Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).

^[35] Rollo, p. 159.

^[36] Section 2, RA 9522.

^[37] Article 121 provides: "Regime of islands. --

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf."

^[38] Rollo, pp. 56-57, 60-64.

^[39] Paragraph 2, Section 2, Article XII of the Constitution uses the term "archipelagic waters" separately from "territorial sea." Under UNCLOS III, an archipelagic State may have internal waters - such as those enclosed by closing lines across bays and mouths of rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: "Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters." (Emphasis supplied)

^[40] Mandated under Articles 52 and 53 of UNCLOS III:

Article 52. Right of innocent passage. --

1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3.

2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. (Emphasis supplied)

Article 53. Right of archipelagic sea lanes passage. --

1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.

2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.

3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.

5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane.

6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes.

7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it.

8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.

9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.

10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given.

11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article.

12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation. (Emphasis supplied)

^[41] Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled "AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN."

^[42] The relevant provision of UNCLOS III provides:

Article 17. Right of innocent passage. --

Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. (Emphasis supplied)

Article 19. Meaning of innocent passage. --

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage

Article 21. Laws and regulations of the coastal State relating to innocent passage. --

1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:

(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.

2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.

3. The coastal State shall give due publicity to all such laws and regulations.

4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.

^[43] The right of innocent passage through the territorial sea applies only to ships and not to aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through the sovereign territory of a State arises only under an international agreement. In contrast, the right of innocent passage through archipelagic waters applies to both ships and aircrafts (Article 53 (12), UNCLOS III).

^[44] Following Section 2, Article II of the Constitution: "Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations." (Emphasis supplied)

^[45] "Archipelagic sea lanes passage is essentially the same as transit passage through straits" to which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V. Lowe, The Law of the Sea 127 (1999).

^[46] Falling under Article 121 of UNCLOS III (see note 37).

^[47] Within the exclusive economic zone, other States enjoy the following rights under UNCLOS III:

Article 58. Rights and duties of other States in the exclusive economic zone. --

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.

x x x x

Beyond the exclusive economic zone, other States enjoy the freedom of the high seas, defined under UNCLOS III as follows:

Article 87. Freedom of the high seas. --

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:

(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

^[48] See note 13.

^[49] Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Tañada v. Angara, 338 Phil. 546, 580-581 (1997).

^[50] G.R. No. 101083, 30 July 1993, 224 SCRA 792.

^[51] "The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens."

^[52] "The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources."

^[53] This can extend up to 350 nautical miles if the coastal State proves its right to claim an extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77).

^[54] Rollo, pp. 67-69.

^[55] Article 47 (1) provides: "An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1." (Emphasis supplied)

---

C O N C U R R I N G  O P I N I O N

VELASCO, JR., J.:

I concur with the ponencia and add the following complementary arguments and observations:

A statute is a product of hard work and earnest studies of Congress to ensure that no constitutional provision, prescription or concept is infringed. Withal, before a law, in an appropriate proceeding, is nullified, an unequivocal breach of, or a clear conflict with, the Constitution must be demonstrated in such a way as to leave no doubt in the mind of the Court.^[1] In the same token, if a law runs directly afoul of the Constitution, the Court's duty on the matter should be clear and simple: Pursuant to its judicial power and as final arbiter of all legal questions,^[2] it should strike such law down, however laudable its purpose/s might be and regardless of the deleterious effect such action may carry in its wake.

Challenged in these proceedings is the constitutionality of Republic Act (RA 9522) entitled "An Act to Amend Certain Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the Archipelagic Baselines Of The Philippines and for Other Purposes."  For perspective, RA 3046, "An Act to Define the Baselines of the Territorial Sea of the Philippines,  was enacted in 1961 to comply with the United Nations Convention on the Law of the Sea (UNCLOS) I. Eight years later, RA 5446 was enacted to amend typographical errors relating to coordinates in RA 3046. The latter law also added a provision asserting Philippine sovereignty over Sabah.

As its title suggests, RA 9522 delineates archipelagic baselines of the country, amending in the process the old baselines law, RA 3046. Everybody is agreed that RA 9522 was enacted in response to the country's commitment to conform to some 1982 Law of the Sea Convention (LOSC) or UNCLOS III provisions to define new archipelagic baselines through legislation, the Philippines having signed^[3] and eventually ratified^[4] this multilateral treaty. The Court can take judicial notice that RA 9522 was registered and deposited with the UN on April 4, 2009.

As indicated in its Preamble,^[5] 1982 LOSC aims, among other things, to establish, with due regard for the sovereignty of all States, "a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans." One of the measures to attain the order adverted to is to have a rule on baselines. Of particular relevance to the Philippines, as an archipelagic state, is Article 47 of UNCLOS III which deals with baselines:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

2.  The length of such baseline shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.

3.  The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.

x x x x

9.  The archipelagic State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.^[6] (Emphasis added.)

To obviate, however, the possibility that certain UNCLOS III baseline provisions would, in their implementation, undermine its sovereign and/or jurisdictional interests over what it considers its territory,^[7] the Philippines, when it signed UNCLOS III on December 10, 1982, made the following "Declaration" to said treaty:

The Government of the Republic of the Philippines [GRP] hereby manifests that in signing the 1982 United Nations Convention on the Law of the Sea, it does so with the understandings embodied in this declaration, made under the provisions of Article 310 of the Convention, to wit:

The signing of the Convention by the [GRP] shall not in any manner impair or prejudice the sovereign rights of the [RP] under and arising from the Constitution of the Philippines;

Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the United States of America [USA], under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the [USA] and Great Britain of January 2, 1930;

x x x x

Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto;

The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines. The [GRP] maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution;

The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty independence and security;

The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.^[8]  (Emphasis added.)

Petitioners challenge the constitutionality of RA 9522 on the principal ground that the law violates Section 1, Article I of the 1987 Constitution on national territory which states:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas.  The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Emphasis supplied.)

According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission which drafted the 1987 Constitution, the aforequoted Section 1 on national territory was "in substance a copy of its 1973 counterpart."^[9] Art. I of the 1973 Constitution reads:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories belonging to  the Philippines by historic right or legal title,  including the  territorial sea, the air space,  the subsoil, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction.  The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.  (Emphasis added.)

As may be noted both constitutions speak of the "Philippine archipelago," and, via the last sentence of their respective provisions, assert the country's adherence to the "archipelagic principle." Both constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2) other territories belonging to the Philippines. So what or where is Philippine archipelago contemplated in the 1973 and 1987 Constitutions then?  Fr.  Bernas answers the poser in the following wise:

Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the 1973 Constitution. x x x

x x x x

x x x To understand [the meaning of national territory as comprising the Philippine archipelago], one must look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final form.

Section 1 of the first draft submitted by the Committee on National Territory almost literally reproduced Article I of the 1935 Constitution x x x. Unlike the 1935 version, however, the draft designated the Philippines not simply as the Philippines but as "the Philippine archipelago.^[10] In response to the criticism that the definition was colonial in tone x x x, the second draft further designated the Philippine archipelago, as the historic home of the Filipino people from its beginning.^[11]

After debates x x x, the Committee reported out a final draft, which became the initially approved version: "The national territory consists of the Philippine archipelago which is the ancestral home of the Filipino people and which is composed of all the islands and waters embraced therein..."

What was the intent behind the designation of the Philippines as an "archipelago"? x x x Asked by Delegate Roselller Lim (Zamboanga) where this archipelago was, Committee Chairman Quintero answered that it was the area delineated in the Treaty of Paris. He said that objections to the colonial implication of mentioning the Treaty of Paris was responsible for the omission of the express mention of the Treaty of Paris.

Report No. 01 of the Committee on National Territory had in fact been explicit in its delineation of the expanse of this archipelago. It said:

Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a huge or giant rectangle will emerge, measuring about 600 miles in width and 1,200 miles in length. Inside this giant rectangle are the 7,100 islands comprising the Philippine Islands. From the east coast of Luzon to the eastern boundary of this huge rectangle in the Pacific Ocean, there is a distance of over 300 miles. From the west coast of Luzon to the western boundary of this giant rectangle in the China sea, there is a distance of over 150 miles.

When the [US] Government enacted the Jones Law, the Hare-Hawes Cutting Law and the Tydings McDuffie Law,  it in reality announced to the whole world that it was turning over to the Government of the Philippine Islands an archipelago (that is a big body of water studded with islands), the boundaries of which archipelago are set forth in Article III of the Treaty of Paris. It also announced to the whole world that the waters inside the giant rectangle belong to the Philippines - that they are not part of the high seas.

When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was ceding to the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines specified in the treaty, and that the archipelago consisted of the huge body of water inside the boundaries and the islands inside said boundaries.

The delineation of the extent of the Philippine archipelago must be understood in the context of the modifications made both by the Treaty of Washington of November 7, 1900, and of the Convention of January 12, 1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and the Turtle and Mangsee Islands. However, x x x the definition of the archipelago did not include the Batanes group[, being] outside the boundaries of the Philippine archipelago as set forth in the Treaty of Paris. In literal terms, therefore, the Batanes islands would come not under the Philippine archipelago but under the phrase "all other territories belong to the Philippines."^[12] x x x (Emphasis added.)

From the foregoing discussions on the deliberations of the provisions on national territory, the following conclusion is abundantly evident:  the "Philippine archipelago" of the 1987 Constitution is the same "Philippine archipelago" referred to in Art. I of the 1973 Constitution which in turn corresponds to the territory defined and described in Art. 1 of the 1935 Constitution,^[13] which pertinently reads:

Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris concluded between the [US] and Spain on the tenth day of December, ^[1898], the limits of which are set forth in Article III of said treaty, together with all the islands in the treaty concluded at Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between the [US] and Great Britain x x x.

While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so the nationalistic arguments went, being "a repulsive reminder of the indignity of our colonial past,"^[14] it is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of the national territory.

On the other hand,  the phrase "all other territories over which the Philippines has sovereignty or jurisdiction," found in the 1987 Constitution, which replaced the deleted phrase "all territories belonging to the Philippines by historic right or legal title"^[15] found in the 1973 Constitution, covers areas linked to the Philippines with varying degrees of certainty.^[16] Under this category would fall: (a) Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee on National Territory, described as belonging to the Philippines in all its history;^[17] (b) Sabah, over which a formal claim had been filed, the so-called Freedomland (a group of islands known as Spratleys); and (c) any other territory, over which the Philippines had filed a claim or might acquire in the future through recognized modes of acquiring territory.^[18] As an author puts it, the deletion of the words "by historic right or legal title" is not to be interpreted as precluding future claims to areas over which the Philippines does not actually exercise sovereignty.^[19]

Upon the foregoing perspective and going into specifics, petitioners would have RA 9522 stricken down as unconstitutional for the reasons that it deprives the Philippines of what has long been established as part and parcel of its national territory under the Treaty of Paris, as supplemented by the aforementioned 1900 Treaty of Washington or, to the same effect, revises the definition on or dismembers the national territory. Pushing their case, petitioners argue that the constitutional definition of the national territory cannot be remade by a mere statutory act.^[20] As another point, petitioners parlay the theory that the law in question virtually weakens the country's territorial claim over the Kalayaan Island Group (KIG) and Sabah, both of which come under the category of "other territories" over the Philippines has sovereignty or jurisdiction.  Petitioners would also assail the law on grounds related to territorial sea lanes and internal waters transit passage by foreign vessels.

It is remarkable that petitioners could seriously argue that RA 9522 revises the Philippine territory as defined in the Constitution, or worse, constitutes an abdication of territory.

It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982 LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime zones. Or as the ponencia aptly states, RA 9522 aims to mark-out specific base points along the Philippine coast from which baselines are drawn to serve as starting points to measure the breadth of the territorial sea and maritime zones.^[21] The baselines are set to define the sea limits of a state, be it coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as petitioners would insist at every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that countries can have territories outside their baselines. Far from having a dismembering effect, then, RA 9522 has in a limited but real sense increased the country's maritime boundaries. How this situation comes about was extensively explained by then Minister of State and head of the Philippine delegation to UNCLOS III Arturo Tolentino in his sponsorship speech^[22]  on the concurrence of the Batasang Pambansa with the LOSC:

x x x x

Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area inside the archipelagic base lines become a unified whole and the waters between the islands which formerly were regarded by international law as open or international seas now become waters under the complete sovereignty of the Filipino people. In this light there would be an additional area of 141,800 square nautical miles inside the base lines that will be recognized by international law as Philippine waters, equivalent to 45,351,050 hectares. These gains in the waters of the sea, 45,211,225 hectares outside the base lines and 141,531,000 hectares inside the base lines, total 93,742,275 hectares as a total gain in the waters under Philippine jurisdiction.

From a pragmatic standpoint, therefore, the advantage to our country and people not only in terms of the legal unification of land and waters of the archipelago in the light of international law, but also in terms of the vast resources that will come under the dominion and jurisdiction of the Republic of the Philippines, your Committee on Foreign Affairs does not hesitate to ask this august Body to concur in the Convention by approving the resolution before us today.

May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of the Sea.

Lest it be overlooked, the constitutional provision on national territory, as couched, is broad enough to encompass RA 9522's definition of the archipelagic baselines.  To reiterate, the laying down of baselines is not a mode of acquiring or asserting ownership a territory over which a state exercises sovereignty.  They are drawn for the purpose of defining or establishing the maritime areas over which a state can exercise sovereign rights. Baselines are used for fixing starting point from which the territorial belt is measured seawards or from which the adjacent maritime waters are measured.  Thus, the territorial sea, a marginal belt of maritime waters, is measured from the baselines extending twelve (12) nautical miles outward.^[23]  Similarly, Art. 57 of the 1982 LOSC provides that the Exclusive Economic Zone (EEZ) "shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured."^[24] Most important to note is that the baselines indicated under RA 9522 are derived from Art. 47 of the 1982 LOSC which was earlier quoted.

Since the 1987 Constitution's definition of national territory does not delimit where the Philippine's baselines are located, it is up to the political branches of the government to supply the deficiency. Through Congress, the Philippines has taken an official position regarding its baselines to the international community through RA 3046,^[25] as amended by RA 5446^[26] and RA 9522. When the Philippines deposited a copy of RA 9522 with the UN Secretary General, we effectively complied in good faith with our obligation under the 1982 LOSC.  A declaration by the Court of the constitutionality of the law will complete the bona fides of the Philippines vis-a-vis the law of the sea treaty.

It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an imposing impact on the signatory states' jurisdiction and even their sovereignty. But this actuality, without more, can hardly provide a justifying dimension to nullify the complying RA 9522. As held by the Court in Bayan Muna v. Romulo,^[27] treaties and international agreements have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary acts, states may decide to surrender or waive some aspects of their sovereignty. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or reciprocal undertaking. On the premise that the Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution.

As a signatory of the 1982 LOSC, it behooves the Philippines to honor its obligations thereunder.  Pacta sunt servanda, a basic international law postulate that "every treaty in force is binding upon the parties to it and must be performed by them in good faith."^[28] The exacting imperative of this principle is such that a state may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty."^[29]

The allegation that Sabah has been surrendered by virtue of RA 9522, which supposedly repealed the hereunder provision of RA 5446, is likewise unfounded.

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2 of RA 5446.  Petitioners obviously have read too much into RA 9522's amendment on the baselines found in an older law.  Aside from setting the country's baselines, RA 9522 is, in its Sec. 3, quite explicit in its reiteration of the Philippines' exercise of sovereignty, thus:

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and jurisdiction over all portions of the national territory as defined in the Constitution and by provisions of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, as amended.

To emphasize, baselines are used to measure the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf.  Having KIG and the Scarborough Shoal outside Philippine baselines will not diminish our sovereignty over these areas. Art. 46 of UNCLOS III in fact recognizes that an archipelagic state, such as the Philippines, is a state "constituted wholly by one or more archipelagos and may include other islands." (emphasis supplied)  The "other islands" referred to in Art. 46 are doubtless islands not forming part of the archipelago but are nevertheless part of the state's territory.

The Philippines' sovereignty over KIG and Scarborough Shoal are, thus, in no way diminished.  Consider: Other countries such as Malaysia and the United States have territories that are located outside its baselines, yet there is no territorial question arising from this arrangement. ^[30]

It may well be apropos to point out that the Senate version of the baseline bill that would become RA 9522 contained the following explanatory note: The law "reiterates our sovereignty over the Kalayaan Group of Islands declared as part of the Philippine territory under Presidential Decree No. 1596. As part of the Philippine territory, they shall be considered as a `regime of islands' under Article 121 of the Convention."^[31]  Thus, instead of being in the nature of a "treasonous surrender" that petitioners have described it to be, RA 9522 even harmonizes our baseline laws with our international agreements, without limiting our territory to those confined within the country's baselines.

Contrary to petitioners' contention, the classification of KIG and the Scarborough Shoal as falling under the Philippine's regime of islands is not constitutionally objectionable.  Such a classification serves as compliance with LOSC and the Philippines' assertion of sovereignty over KIG and Scarborough Shoal. In setting the baseline in KIG and Scarborough Shoal, RA 9522 states that these are areas "over which the Philippines likewise exercises sovereignty and jurisdiction." It is, thus, not correct for petitioners to claim that the Philippines has lost 15,000 square nautical miles of territorial waters upon making this classification.  Having 15,000 square nautical miles of Philippine waters outside of our baselines, to reiterate, does not translate to a surrender of these waters. The Philippines maintains its assertion of ownership over territories outside of its baselines. Even China views RA 9522 as an assertion of ownership, as seen in its Protest^[32] filed with the UN Secretary-General upon the deposit of RA 9522.

We take judicial notice of the effective occupation of KIG by the Philippines. Petitioners even point out that national and local elections are regularly held there.  The classification of KIG as under a "regime of islands" does not in any manner affect the Philippines' consistent position with regard to sovereignty over KIG. It does not affect the Philippines' other acts of ownership such as occupation or amend Presidential Decree No. 1596, which declared KIG as a municipality of Palawan.

The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not detract to the constitutionality of the law in question. The resolution of the problem lies with the political departments of the government.

All told, the concerns raised by the petitioners about the diminution or the virtual dismemberment of the Philippine territory by the enactment of RA 9522 are, to me, not well grounded. To repeat, UNCLOS III pertains to a law on the seas, not territory. As part of its Preamble,^[33] LOSC recognizes "the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans x x x."

This brings me to the matter of transit passage of foreign vessels through Philippine waters.

Apropos thereto, petitioners allege that RA 9522 violates the nuclear weapons-free policy under Sec. 8, in relation to Sec. 16, Art. II of the Constitution, and exposes the Philippines to marine pollution hazards, since under the LOSC the Philippines supposedly must give to ships of all states the right of innocent passage and the right of archipelagic sea-lane passage.

The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption and pursuit by the Philippines of "a policy of freedom from nuclear weapons in its territory." On the other hand, the succeeding Sec. l6 underscores the State's firm commitment "to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature."  Following the allegations of petitioners, these twin provisions will supposedly be violated inasmuch as RA 9522 accedes to the right of innocent passage and the right of archipelagic sea-lane passage provided under the LOSC. Therefore, ships of all nations--be they nuclear-carrying warships or neutral commercial vessels transporting goods--can assert the right to traverse the waters within our islands.

A cursory reading of RA 9522 would belie petitioners' posture. In context, RA 9522 simply seeks to conform to our international agreement on the setting of baselines and provides nothing about the designation of archipelagic sea-lane passage or the regulation of innocent passage within our waters. Again, petitioners have read into the amendatory RA 9522 something not intended.

Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic party-states in terms of transit under Arts. 51 to 53, which are explained below:

To safeguard, in explicit terms, the general balance struck by [Articles 51 and 52] between the need for passage through the area (other than straits used for international navigation) and the archipelagic state's need for security, Article 53 gave the archipelagic state the right to regulate where and how ships and aircraft pass through its territory by designating specific sea lanes. Rights of passage through these archipelagic sea lanes are regarded as those of transit passage:

(1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for safe, continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.

(2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.

(3) Archipelagic sea lanes passage is the exercise in accordance with the present Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.^[34]

But owing to the geographic structure and physical features of the country, i.e., where it is "essentially a body of water studded with islands, rather than islands with water around them,"^[35] the Philippines has consistently maintained the conceptual unity of land and water as a necessary element for territorial integrity,^[36] national security (which may be compromised by the presence of warships and surveillance ships on waters between the islands),^[37] and the preservation of its maritime resources. As succinctly explained by Minister Arturo Tolentino, the essence of the archipelagic concept is "the dominion and sovereignty of the archipelagic State within its baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable unity of the land and water domain."^[38] Indonesia, like the Philippines, in terms of geographic reality, has expressed agreement with this interpretation of the archipelagic concept. So it was that in 1957, the Indonesian Government issued the Djuanda Declaration, therein stating :

[H]istorically, the Indonesian archipelago has been an entity since time immemorial. In view of the territorial entirety and of preserving the wealth of the Indonesian state, it is deemed necessary to consider all waters between the islands and entire entity.

x x x On the ground of the above considerations, the Government states that all waters around, between and connecting, the islands or parts of islands belonging to the Indonesian archipelago irrespective of their width or dimension are natural appurtenances of its land territory and therefore an integral part of the inland or national waters subject to the absolute sovereignty of Indonesia.^[39] (Emphasis supplied.)

Hence, the Philippines maintains the sui generis character of our archipelagic waters as equivalent to the internal waters of continental coastal states. In other words, the landward waters embraced within the baselines determined by RA 9522, i.e., all waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.^[40] Accordingly, such waters are not covered by the jurisdiction of the LOSC and cannot be subjected to the rights granted to foreign states in archipelagic waters, e.g., the right of innocent passage,^[41] which is allowed only in the territorial seas, or that area of the ocean comprising 12 miles from the baselines of our archipelago; archipelagic sea-lane passage;^[42] over flight;^[43] and traditional fishing rights.^[44]

Our position that all waters within our baselines are internal waters, which are outside the jurisdiction of the 1982 LOSC,^[45] was abundantly made clear by the Philippine Declaration at the time of the signing of the LOSC on December 10, 1982. To reiterate, paragraphs 5, 6 and 7 of the Declaration state:

5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential decrees of Proclamation of the republic of the Philippines; the Government x x x maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution;

6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive  it of authority to enact legislation to protect its sovereignty, independence and security;

7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines and removes straits connecting this water with the economic zone or high seas from the rights of foreign vessels to transit passage for international navigation. (Emphasis supplied.)^[46]

More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity of the Philippine state as comprising both water and land was strengthened by the proviso in its first article, viz: "The waters around, between, and connecting the islands of the [Philippine] archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (emphasis supplied)

In effect, contrary to petitioners' allegations, the Philippines' ratification of the 1982 LOSC did not matter-of-factly open our internal waters to passage by foreign ships, either in the concept of innocent passage or archipelagic sea-lane passage, in exchange for the international community's recognition of the Philippines as an archipelagic state. The Filipino people, by ratifying the 1987 Constitution, veritably rejected the quid pro quo petitioners take as being subsumed in that treaty.

Harmonized with the Declaration and the Constitution, the designation of baselines made in RA 9522 likewise designates our internal waters, through which passage by foreign ships is not a right, but may be granted by the Philippines to foreign states but only as a dissolvable privilege.

In view of the foregoing, I vote to DISMISS the Petition.

---

^[1]  League of Cities of the Phil. v. COMELEC, G.R. No. 176951, December 21, 2009, 608 SCRA 636.

^[2] Under Art. VIII, Sec. 5 of the Constitution, the Supreme Court is empowered to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: all cases in which the Constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphasis supplied.)

^[3] December 10, 1982.

^[4] May 8, 1984.

^[5] Available on (visited July 28, 2011).

^[6] UNCLOS, Art. 47, December 10, 1982.

^[7] J. Bernas, S.J., The 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY 57 (2003).

^[8] See J. Batongbacal, The Metes and Bounds of the Philippine National Territory, An International Law and Policy Perspective, Supreme Court of the Philippines, Philippine Judicial Academy Third Distinguished Lecture, Far Eastern University, June 27, 2008.

^[9] J. Bernas, supra note 7, at 10.

^[10] Citing Report No. 01 of the Committee on National Territory.

^[11] Citing Report No. 02 of the Committee on National Territory.

^[12] J. Bernas, supra note 7, at 11-14.

^[13] Id. at 14.

^[14] Id. at 9; citing Speech, Session February 15, 1972, of Delegates Amanio Sorongon, et al.

^[15] The history of this deleted phrase goes back to the last clause of Art. I of the 1935 Constitution which included "all territory over which the present Government of the Philippine Islands exercises jurisdiction. See J. Bernas, supra note 7, at 14.

^[16] J. Bernas, supra note 7, at 16.

^[17] Id.; citing deliberations of the February 17, 1972 Session.

^[18] Id.

^[19] DE LEON, PHILIPPINE CONSTITUTION 62 (2011).

^[20] Petition, pp. 4-5.

^[21] Art. 48 of UNCLOS III provides that the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from the archipelagic baseline drawn in accordance with Art. 47.

^[22] R.P. Lotilla, THE PHILIPPINE NATIONAL TERRITORY: A COLLECTION OF RELATED DOCUMENTS 513-517 (1995); citing Batasang Pambansa, Acts and Resolution, 6^th Regular Session.

^[23] J. Bernas, supra note 7, at 22.

^[24] UNCLOS III, Art. 57.

^[25] June 17, 1961.

^[26] September 18, 1968.

^[27] G.R. No. 159618, February 1, 2011; citing Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.

^[28] Art. 26, Vienna Convention on the Law of Treaties, 1969.

^[29] Art. 13, Declaration of Rights and Duties of States Adopted by the International Law Commission, 1949.

^[30] See J. Batongbacal, supra note 8.

^[31] Id.

^[32] The Protest reads in part: "The above-mentioned Philippine Act illegally claims Huangyan Island (referred as "Bajo de Masinloc" in the Act) of China as "areas over which the Philippines likewise exercises sovereignty and jurisdiction." The Chinese Government hereby reiterates that Huangyan Island and Nansha Islands have been part of the territory of China since ancient time. The People's Republic of China has indisputable sovereignty over Huangyan Island and Nansha Islands and their surrounding areas. Any claim to territorial sovereignty over Huangyan Island and Nansha Islands by any other State is, therefore, null and void." Available on

(visited August 9, 2011).

^[33] Supra note 5.

^[34] C. Ku, The Archipelagic States Concept and Regional Stability in Southeast Asia, Case W. Res. J. Int'l L., Vol. 23:463, 469; citing 1958 U.N. Conference on the Law of the Sea, Summary Records 44, Doc. A/Conf. 13/42.

^[35] Id.

^[36] Hiran W. Jayewardene, The Regime of Islands in International Law, AD Dordrecht: Martinus Nijhoff Publishers, p. 103 (1990).

^[37] Id. at 112.

^[38] UNCLOS III Off. Rec., Vol. II, 264, par. 65, and also pars. 61-62 and 66; cited in B. Kwiatkowska, "The Archipelagic Regime in Practice in the Philippines and Indonesia - Making or Breaking International Law?", International Journal of Estuarine and Coastal Law, Vol. 6, No. 1, pp. 6-7.

^[39] 4 Whiteman D.G., International Law 284 (1965); quoted in C. Ku, supra note 34, at 470.

^[40] 1987 Constitution, Art. I.

^[41] LOSC, Arts. 52 and 54.

^[42] LOSC, Art. 53, par. 2.

^[43] LOSC, Art. 53, par. 2.

^[44] LOSC, Art. 51.

^[45] LOSC, Art. 8, par. 2.

^[46] Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, "The United Nations Convention on the Law of the Sea: Implications of Philippine Ratification," 9 Philippine Yil (1983) 48-9 and 61-2; and Congress of the Philippines, First Regular Session, Senate, S. No. 232, Explanatory Note and An Act to Repeal Section 2 (concerning TS baselines around Sabah disputed with Malaysia) of the 1968 Act No. 5446.

Before this Court is a petition for review by petitioner Olympio Revaldo (petitioner) seeking to reverse the Decision^[1] dated 23 August 2004 of the Court of Appeals in CA-G.R. CR No. 22031 affirming the Decision^[2] dated 5 September 1997 of the Regional Trial Court, Branch 25, Maasin, Southern Leyte (RTC-Branch 25), in Criminal Case No. 1652, finding petitioner guilty beyond reasonable doubt of illegal possession of lumber in violation of Section 68^[3] of the Revised Forestry Code (Forestry Code).^[4]


Petitioner was charged with the offense of illegal possession of premium hardwood lumber in violation of Section 68 of the Forestry Code,  in an Information^[5] which reads:

That on or about the 17^th day of June 1992, in the (M)unicipality of Maasin, (P)rovince of Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, did then and there willfully, unlawfully and feloniously possess 96.14 board ft. of the following species of flat lumber:

1. Six (6) pcs. 1x10x7 Molave;
2. One (1) pc. 2x6x6  Molave;
3. Two (2) pcs. 2x4x6  Molave;
4. Two (2) pcs. 1x10x6  Narra;
5. Two (2) pcs. 2x8x7 Bajong;
6. One (1) pc. 1x6x6 Bajong;
7. Four (4) pcs. 1x6x6 Magkalipay;  and
8. Three (3) pcs. 1x6x5 Magkalipay;

with a total value of P1,730.52, Philippine Currency, without any legal document as required under existing forest laws and regulations from proper government authorities, to the damage and prejudice of the government.

Upon arraignment, petitioner, assisted by counsel, pleaded not guilty. Trial ensued.

The prosecution presented SPO4 Constantino Maceda (Maceda), Sulpicio Saguing (Saguing), and SPO4  Daniel Paloma Lasala (Lasala) as witnesses.

Maceda, the person in charge of the operations section of the Philippine National Police (PNP) in Maasin, Southern Leyte, testified that on 18 June 1992, at around 11:00 in the morning, he went with Chief Alejandro Rojas (Rojas), SPO3 Melquiades Talisic (Talisic) and SPO3 Nicasio Sunit (Sunit) to the house of petitioner to verify the report of Sunit that petitioner had in his possession lumber without the necessary documents. They were not armed with a search warrant on that day. They confiscated 20 pieces of lumber of different varieties lying around the vicinity of the house of petitioner.  Maceda asked petitioner who the owner of the lumber was and petitioner replied that he owned the lumber.  Petitioner stated that he would use the lumber to repair his house and to make furniture for sale. Maceda also testified that the lumber were freshly cut. Maceda loaded the lumber on the patrol jeep and brought them to the police station. For coordination purposes, Maceda informed the office of the Department of Environment and Natural Resources (DENR)  of the confiscated lumber. The  DENR entrusted to the police custody of the lumber.^[6]

Saguing, Forester II, CENRO-DENR, Maasin, Southern Leyte, testified that he went to the office of the PNP in Maasin, Leyte to scale the confiscated lumber which were of different varieties. The total volume was 96.14 board feet belonging to the first group of hardwood lumber.^[7]

Lasala, Responsible Supply Sergeant, Finance Sergeant and Evidence Custodian, PNP, Maasin, Southern Leyte, testified that he received the 20 pieces of assorted sizes and varieties of lumber from the Clerk of Court of the Municipal Trial Court, but only ten pieces remained because some were damaged due to lack of storage space.^[8]

For the defense, petitioner presented Dionisio Candole (Candole), Apolonio Caalim (Caalim), and himself as witnesses.

Petitioner testified that he is a carpenter specializing in furniture making. He was in his house working  on an ordered divider for a customer in the morning of 18 June 1992 when policemen arrived and inspected his lumber. Maceda, Sunit and Rojas entered his house while Talisic stayed outside. Petitioner admitted to the policemen that he had no permit to possess the lumber because those were only given to him by his uncle Felixberto Bug-os (Bug-os), his aunt Gliceria Bolo (Bolo), his mother-in-law Cecilia Tenio (Tenio). The seven pieces of "magkalipay" lumber were left over from a divider he made for his cousin Jose Epiz. He explained further that the lumber were intended for the repair of his dilapidated house.^[9] The defense presented Caalim to corroborate the testimony of petitioner.^[10]

Defense witness Candole testified that it was Bug-os who hired him to cut a "tugas" tree on his land, sawed it into lumber and delivered the same to petitioner who paid for the labor transporting the sawn lumber. Candole further testified that while they were on their way to Barangay Combado,  Sunit stopped them but allowed the lumber to be brought to the house of petitioner.^[11]


The trial court stated that petitioner failed to present Bug-os,  Bolo, and Tenio to attest to the fact that they sought prior DENR permission before cutting the trees and sawing them into lumber. The trial court further stated that the Forestry Code is a special law where criminal intent is not necessary. The Secretary of the DENR may issue a Special Private Land Timber Permit  to landowners to cut, gather, collect or remove narra or other premium hardwood species found in private lands. Transportation of timber or other forest products without authority or without the legal documents required under forest rules and regulations is punishable under Section 68 of the Forestry Code. Petitioner did not present any document as required by law.

The RTC-Branch 25 rendered judgment on 5 September 1997 convicting petitioner of the offense charged and sentencing him as follows:

WHEREFORE, judgment is rendered finding the accused OLYMPIO REVALDO GUILTY beyond reasonable doubt of the offense charged and, crediting him with one mitigating circumstance before applying the Indeterminate Sentence Law hereby SENTENCES him to an indeterminate imprisonment term of FOUR (4) YEARS and TWO (2) MONTHS of PRISION CORRECCIONAL as minimum to EIGHT (8) YEARS and ONE (1) DAY of PRISION MAYOR, as maximum, and to pay the costs.

The 21 pieces of flat lumber of different varieties, scaled at 96.14 board feet and valued at P1,730.52 are hereby ordered CONFISCATED and FORFEITED in favor of the government particularly the CENRO, Maasin, Southern Leyte which shall sell the same at public auction and the proceeds turned over to the National Treasury.^[12]

Petitioner appealed to the Court of Appeals.


On 23 August 2004, the Court of Appeals affirmed the judgment of the trial court. The Court of Appeals ruled that motive or intention is immaterial for the reason that mere possession of the lumber without the legal documents gives rise to criminal liability.

Hence, the present petition.


Petitioner contends that the warrantless search and seizure conducted by the police officers was illegal and thus the items seized should not have been admitted in evidence against him. Petitioner argues that the police officers were not armed with a search warrant when they went to his house to verify the report of Sunit that petitioner had in his possession lumber without the corresponding license. The police officers who conducted the search in the premises of petitioner acted on the basis only on the verbal order of the Chief of Police. Sunit had already informed the team of the name of petitioner and the location the day before they conducted the search. Petitioner argues that, with that information on hand,  the police officers could have easily convinced a judge that there was probable cause to justify the issuance of a search warrant, but they did not. Because the search was illegal, all items recovered from petitioner during the illegal search were prohibited from being used as evidence against him. Petitioner therefore prays for his acquittal.

In its Comment, respondent People of the Philippines (respondent) contends that even without a search warrant, the personnel of the PNP can seize the forest products cut, gathered or taken by an offender pursuant to Section 80^[13] of the Forestry Code.

There is no question that the police officers went to the house of petitioner because of the information relayed by Sunit that petitioner had in his possession illegally cut lumber. When the police officers arrived at the house of petitioner, the lumber were lying around the vicinity of petitioner's house. The lumber were in plain view. Under the plain view doctrine, objects falling in "plain view" of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence. This Court had the opportunity to summarize the rules governing plain view searches in the case of People v. Doria,^[14] to wit:

The "plain view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent.^[15]

When asked whether he had the necessary permit to possess the lumber, petitioner failed to produce one. Petitioner merely replied that the lumber in his possession was intended for the repair of his house and for his furniture shop. There was thus probable cause for the police officers to confiscate the lumber. There was, therefore, no necessity for a search warrant.

The seizure of the lumber from petitioner who did not have the required permit to possess the forest products cut is sanctioned by Section 68 of the Forestry Code which provides:

Sec. 68. Cutting, Gathering and/or Collecting Timber, or Other Forest Products Without License. - Any person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation.

The Court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed, as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found. (Emphasis supplied)

There are two distinct and separate offenses punished under Section 68 of the Forestry Code, to wit:

(1)	Cutting, gathering, collecting and removing timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land without any authority; and
(2)	Possession of timber or other forest products without the legal documents required under existing forest laws and regulations.[16]

As the Court held in People v. Que,^[17] in the first offense, one can raise as a defense the legality of the acts of cutting, gathering, collecting, or removing timber or other forest products  by presenting the authorization issued by the DENR. In the second offense, however, it is immaterial whether the cutting, gathering, collecting and removal of the forest products are legal or not. Mere possession of forest products without the proper documents consummates the crime. Whether or not the lumber comes from a legal source is immaterial because the Forestry Code is a special law which considers mere possession of timber or other forest products without the proper documentation as malum prohibitum.

On whether the police officers had the authority to arrest petitioner, even without a warrant, Section 80 of the Forestry Code authorizes the forestry  officer or employee of the DENR or any personnel of the PNP to arrest, even without a warrant, any person who has committed or is committing in his presence any of the offenses defined by the Forestry Code and to seize and confiscate the tools and equipment used in committing the offense or the forest products gathered or taken by the offender.  Section 80 reads:

Sec. 80. Arrest; Institution of Criminal Actions. - A forest officer or employee of the Bureau or any personnel of the Philippine Constabulary/Philippine National Police shall arrest even without warrant any person who has committed or is committing in his presence any of the offenses defined in this chapter. He shall also seize and confiscate, in favor of the Government, the tools and equipment used in committing the offense, and the forest products cut, gathered or taken by the offender in the process of committing the offense. x x x (Emphasis supplied)

Petitioner was in possession of the lumber without the necessary documents when the police officers accosted him. In  open court, petitioner categorically admitted the possession and ownership of the confiscated lumber as well as the fact that he did not have any legal documents therefor and that he merely intended to use the lumber for the repair of his dilapidated house. Mere possession of forest products without the proper documentation consummates the crime. Dura lex sed lex.  The law may be harsh but that is the law.

On the penalty imposed by the lower courts, we deem it necessary to discuss the matter. Violation of Section 68 of the Forestry Code is punished as Qualified Theft with the penalties imposed under Articles 309 and 310 of the Revised Penal Code,^[18] thus:

Art. 309. Penalties. - Any person guilty of theft shall be punished by:

1. The penalty of prisión mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty  which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusión temporal, as the case may be.
   
2. The penalty of prisión correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.
   
3. The penalty of prisión correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos.
   
4. Arresto mayor in its medium period to prisión correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos.
   
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.
   
6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.
   
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provisions of any of the five preceding subdivisions shall be made applicable.
   
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

Art. 310. Qualified theft. - The crime of qualified theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding articles, x x x.

The trial court applied Article 309(3), in relation to Article 310 of the Revised Penal Code, considering that the amount involved was P1,730.52. However, except for the amount stated in the Information, the prosecution did not present any proof as to the value of the lumber. What the prosecution presented were the Seizure Receipt^[19] and Confiscation Receipt^[20] stating the number of pieces of lumber, their species, dimensions and volumes, with "no pertinent supporting document." These do not suffice.

As we have held in Merida v. People,^[21] to prove the amount of the property taken for fixing the penalty imposable against the accused under Article 309 of the Revised Penal Code, the prosecution must present more than a mere uncorroborated "estimate" of such fact. In the absence of independent and reliable corroboration of such estimate, the courts may either apply the minimum penalty under Article 309 or fix the value of the property taken based on the attendant circumstances of the case.

Accordingly, the prescribed penalty under Article 309(6) of the Revised Penal Code is arresto mayor in its minimum and medium periods. However, considering that violation of Section 68 of the Forestry Code is punished as qualified theft under Article 310 of the Revised Penal Code pursuant to the Forestry Code, the prescribed penalty shall be increased by two degrees,^[22] that is, to prision correccional in its medium and maximum periods or two (2) years, four (4) months and one (1) day to six (6) years.  Taking into account the Indeterminate Sentence Law, the minimum term shall be taken from anywhere within the range of four (4) months and one (1) day to two (2) years and four (4) months of arresto mayor, which is the penalty next lower to the prescribed penalty.  We find it proper to impose upon petitioner, under the circumstances obtaining here, the indeterminate penalty of four (4) months and one (1) day of arresto mayor, as minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as maximum.

WHEREFORE, we AFFIRM the appealed Decision convicting petitioner for violation of Section 68 (now Section 77) of  the Forestry Code, as amended, with MODIFICATION as regards the penalty in that petitioner Olympio Revaldo is sentenced to suffer the indeterminate penalty of  four (4) months and one (1) day of arresto mayor,  as minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as maximum.

SO ORDERED.

Puno, C.J., (Chairperson), Corona, Leonardo-De Castro, and Bersamin, JJ., concur.

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^[1] Penned by Associate Justice Ramon M. Bato, Jr. with Associate Justices Elvi John S. Asuncion and Isaias P. Dicdican, concurring.

^[2] Penned by Judge Leandro T. Loyao, Jr.

^[3] Renumbered as Section 77 by Republic Act No. 7161.

^[4] Presidential Decree No. 705, as  amended by Presidential Decree Nos. 1559 and 1775.

^[5] Records of Criminal Case No. 1653, p. 52.

^[6] TSN, 10 February 1994, pp. 2-9.

^[7] TSN, 23 February 1995, pp. 2-7.

^[8] TSN, 17 October 1995, pp. 2-8.

^[9] TSN, 19 March 1996, pp. 2-19.

^[10] TSN, 21 January 1997, pp. 2-4.

^[11] TSN, 12 September 1996, pp. 2-15.

^[12] Rollo, pp. 23-24.

^[13] Renumbered as Section 89 by Republic Act No. 7161.

^[14] 361 Phil. 595 (1999).

^[15] Id. at 633-634.

^[16] Bon v. People, 464 Phil. 125 (2004); Lalican v. Hon. Vergara, 342 Phil. 485 (1997); Mustang       Lumber, Inc. v. CA, 327 Phil. 214 (1996).

^[17] G.R. No. 120365, 17 December 1996, 265 SCRA 721.

^[18] People v. Dator, 398 Phil. 109 (2000).

^[19] Exhibit "A," Folder of Exhibits, p. 10.

^[20] Exhibit "1," Folder of Exhibits, p. 9.

^[21] G.R. No. 158182, 12 June 2008,  554 SCRA 366.

^[22] People v. Temporado, G.R. No. 173473, 17 December 2008; Bon v. People, 464 Phil. 125 (2004).

This is a petition for review^[1] of the Decision^[2] dated 28 June 2002 and the Resolution dated 14 May 2003 of the Court of Appeals. The 28 June 2002 Decision affirmed the conviction of petitioner Sesinando Merida (petitioner) for violation of Section 68,^[3] Presidential Decree No. 705 (PD 705),^[4] as amended by Executive Order No. 277. The Resolution dated 14 May 2003 denied admission of petitioner's motion for reconsideration.^[5]

The FactsPetitioner was charged in the Regional Trial Court of Romblon, Romblon, Branch 81 (trial court) with violation of Section 68 of PD 705, as amended, for "cut[ting], gather[ing], collect[ing] and remov[ing]" a lone narra tree inside a private land in Mayod, Ipil, Magdiwang, Romblon (Mayod Property) over which private complainant Oscar M. Tansiongco (Tansiongco) claims ownership.^[6]

The prosecution evidence showed that on 23 December 1998, Tansiongco learned that petitioner cut a narra tree in the Mayod Property. Tansiongco reported the matter to Florencio Royo (Royo), the punong barangay of Ipil. On 24 December 1998,^[7] Royo summoned petitioner to a meeting with Tansiongco. When confronted during the meeting about the felled narra tree, petitioner admitted cutting the tree but claimed that he did so with the permission of one Vicar Calix (Calix) who, according to petitioner, bought the Mayod Property from Tansiongco in October 1987 under a pacto de retro sale. Petitioner showed to Royo Calix's written authorization signed by Calix's wife.^[8]

On 11 January 1999, Tansiongco reported the tree-cutting to the Department of Environment and Natural Resources (DENR) forester Thelmo S. Hernandez (Hernandez) in Sibuyan, Romblon. When Hernandez confronted petitioner about the felled tree, petitioner reiterated his earlier claim to Royo that he cut the tree with Calix's permission. Hernandez ordered petitioner not to convert the felled tree trunk into lumber.

On 26 January 1999, Tansiongco informed Hernandez that petitioner had converted the narra trunk into lumber. Hernandez, with other DENR employees and enforcement officers, went to the Mayod Property and saw that the narra tree had been cut into six smaller pieces of lumber. Hernandez took custody of the lumber,^[9] deposited them for safekeeping with Royo, and issued an apprehension receipt to petitioner. A larger portion of the felled tree remained at the Mayod Property. The DENR subsequently conducted an investigation on the matter.^[10]

Tansiongco filed a complaint with the Office of the Provincial Prosecutor of Romblon (Provincial Prosecutor) charging petitioner with violation of Section 68 of PD 705, as amended. During the preliminary investigation, petitioner submitted a counter-affidavit reiterating his claim that he cut the narra tree with Calix's permission. The Provincial Prosecutor^[11] found probable cause to indict petitioner and filed the Information with the trial court (docketed as Criminal Case No. 2207).

During the trial, the prosecution presented six witnesses including Tansiongco, Royo, and Hernandez who testified on the events leading to the discovery of and investigation on the tree-cutting. Petitioner testified as the lone defense witness and claimed, for the first time, that he had no part in the tree-cutting.

The Ruling of the Trial CourtIn its Decision dated 24 November 2000, the trial court found petitioner guilty as charged, sentenced him to fourteen (14) years, eight (8) months and one (1) day to twenty (20) years of reclusion temporal and ordered the seized lumber forfeited in Tansiongco's favor.^[12] The trial court dismissed petitioner's defense of denial in view of his repeated extrajudicial admissions that he cut the narra tree in the Mayod Property with Calix's permission. With this finding and petitioner's lack of DENR permit to cut the tree, the trial court held petitioner liable for violation of Section 68 of PD 705, as amended.

Petitioner appealed to the Court of Appeals reiterating his defense of denial. Petitioner also contended that (1) the trial court did not acquire jurisdiction over the case because it was based on a complaint filed by Tansiongco and not by a forest officer as provided under Section 80 of PD 705 and (2) the penalty imposed by the trial court is excessive.

The Ruling of the Court of Appeals

In its Decision dated 28 June 2002, the Court of Appeals affirmed the trial court's ruling but ordered the seized lumber confiscated in the government's favor.^[13] The Court of Appeals sustained the trial court's finding that petitioner is bound by his extrajudicial admissions of cutting the narra tree in the Mayod Property without any DENR permit. The Court of Appeals also found nothing irregular in the filing of the complaint by Tansiongco instead of a DENR forest officer considering that the case underwent preliminary investigation by the proper officer who filed the Information with the trial court.

On the imposable penalty, the Court of Appeals, in the dispositive portion of its ruling, sentenced petitioner to 14 years, 8 months and 1 day to 17 years of reclusion temporal. However, in the body of its ruling, the Court of Appeals held that "the penalty to be imposed on [petitioner] should be (14) years, eight (8) months and one (1) day to twenty (20) years of reclusion temporal,"^[14] the same penalty the trial court imposed.

Petitioner sought reconsideration but the Court of Appeals, in its Resolution dated 14 May 2003, did not admit his motion for having been filed late.^[15]

Hence, this petition. Petitioner raises the following issues:

1. WHETHER x x x SECTION 68 OF P.D. 705 AS AMENDED PROHIBITING THE CUTTING, GATHERING, COLLECTING AND REMOVING TIMBER OR OTHER FOREST PRODUCTS FROM ANY FOREST LAND APPLIES TO PETITIONER.
   
2. WHETHER x x x POSSESSION OF THE NARRA TREE CUT IN PRIVATE LAND CONTESTED BY VICAR CALIX AND PRIVATE-COMPLAINANT OSCAR TANSIONGCO IS COVERED BY SECTION 80 OF P.D. 705 AS AMENDED.
   
3. WHETHER PRIVATE-COMPLAINANT CAN INITIATE THE CHARGE EVEN WITHOUT THE STANDING AUTHORITY COMING FROM THE INVESTIGATING FOREST OFFICER OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AS MANDATED BY SECTION 80 OF P.D. 705 AS AMENDED.
   
   [IV.] WHETHER x x x THE TRIAL COURT ERRED IN TAKING COGNIZANCE OF THE CASE FILED BY PRIVATE-COMPLAINANT BECAUSE IT WAS NOT THE INVESTIGATING OFFICER AS REQUIRED BY SECTION 80 OF P.D. 705 AS AMENDED WHO MUST BE THE ONE TO INSTITUTE THE FILING OF THE SAME.^[16]

In its Comment to the petition, the Office of the Solicitor General (OSG) countered that (1) the trial court acquired jurisdiction over the case even though Tansiongco, and not a DENR forest officer, filed the complaint against petitioner and (2) petitioner is liable for violation of Section 68 of PD 705, as amended.The IssuesThe petition raises the following issues:^[17]

1) Whether the trial court acquired jurisdiction over Criminal Case No. 2207 even though it was based on a complaint filed by Tansiongco and not by a DENR forest officer; and

2) Whether petitioner is liable for violation of Section 68 of PD 705, as amended.

The Ruling of the CourtThe petition has no merit.


We sustain the OSG's claim that the trial court acquired jurisdiction over Criminal Case No. 2207. The Revised Rules of Criminal Procedure (Revised Rules) list the cases which must be initiated by a complaint filed by specified individuals,^[18] non-compliance of which ousts the trial court of jurisdiction from trying such cases.^[19] However, these cases concern only defamation and other crimes against chastity^[20] and not to cases concerning Section 68 of PD 705, as amended. Further, Section 80 of PD 705 does not prohibit an interested person from filing a complaint before any qualified officer for violation of Section 68 of PD 705, as amended. Section 80 of PD 705 provides in relevant parts:

SECTION 80. Arrest; Institution of criminal actions. — x x x x

Reports and complaints regarding the commission of any of the offenses defined in this Chapter, not committed in the presence of any forest officer or employee, or any of the deputized officers or officials, shall immediately be investigated by the forest officer assigned in the area where the offense was allegedly committed, who shall thereupon receive the evidence supporting the report or complaint.

If there is prima facie evidence to support the complaint or report, the investigating forest officer shall file the necessary complaint with the appropriate official authorized by law to conduct a preliminary investigation of criminal cases and file an information in Court. (Emphasis supplied)

We held in People v. CFI of Quezon^[21] that the phrase "reports and complaints" in Section 80 refers to "reports and complaints as might be brought to the forest officer assigned to the area by other forest officers or employees of the Bureau of Forest Development or any of the deputized officers or officials, for violations of forest laws not committed in their presence."^[22]

Here, it was not "forest officers or employees of the Bureau of Forest Development or any of the deputized officers or officials" who reported to Hernandez the tree-cutting in the Mayod Property but Tansiongco, a private citizen who claims ownership over the Mayod Property. Thus, Hernandez cannot be faulted for not conducting an investigation to determine "if there is prima facie evidence to support the complaint or report."^[23] At any rate, Tansiongco was not precluded, either under Section 80 of PD 705 or the Revised Rules, from filing a complaint before the Provincial Prosecutor for petitioner's alleged violation of Section 68 of PD 705, as amended. For its part, the trial court correctly took cognizance of Criminal Case No. 2207 as the case falls within its exclusive original jurisdiction.^[24]


Section 68, as amended, one of the 12 acts^[25] penalized under PD 705, provides:

SECTION 68. Cutting, Gathering and/or Collecting Timber, or Other Forest Products Without License. — Any person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation.

The court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found. (Emphasis supplied)

Section 68 penalizes three categories of acts: (1) the cutting, gathering, collecting, or removing of timber or other forest products from any forest land without any authority; (2) the cutting, gathering, collecting, or removing of timber from alienable or disposable public land, or from private land without any authority;^[26] and (3) the possession of timber or other forest products without the legal documents as required under existing forest laws and regulations.^[27] Petitioner stands charged of having "cut, gathered, collected and removed timber or other forest products from a private land^[28] without x x x the necessary permit x x x " thus his liablity, if ever, should be limited only for "cut[ting], gather[ing], collect[ing] and remov[ing] timber," under the second category. Further, the prosecution evidence showed that petitioner did not perform any acts of "gathering, collecting, or removing" but only the act of "cutting" a lone narra tree. Hence, this case hinges on the question of whether petitioner "cut x x x timber" in the Mayod Property without a DENR permit.^[29]

We answer in the affirmative and thus affirm the lower courts' rulings.

On the question of whether petitioner cut a narra tree in the Mayod Property without a DENR permit, petitioner adopted conflicting positions. Before his trial, petitioner consistently represented to the authorities that he cut a narra tree in the Mayod Property and that he did so only with Calix's permission. However, when he testified, petitioner denied cutting the tree in question. We sustain the lower courts' rulings that petitioner's extrajudicial admissions bind him.^[30] Petitioner does not explain why Royo and Hernandez, public officials who testified under oath in their official capacities, would lie on the stand to implicate petitioner in a serious criminal offense, not to mention that the acts of these public officers enjoy the presumption of regularity. Further, petitioner does not deny presenting Calix's authorization to Royo and Hernandez as his basis for cutting the narra tree in the Mayod Property. Petitioner has no use of Calix's authorization if, as he claimed during the trial, he did not cut any tree in the Mayod Property.

We further hold that the lone narre tree petitioner cut from the Mayod Property constitutes "timber" under Section 68 of PD 705, as amended. PD 705 does not define "timber," only "forest product" (which circuitously includes "timber.")^[31] Does the narra tree in question constitute "timber" under Section 68? The closest this Court came to defining the term "timber" in Section 68 was to provide that "timber," includes "lumber" or "processed log."^[32] In other jurisdictions, timber is determined by compliance with specified dimensions^[33] or certain "stand age" or "rotation age."^[34] In Mustang Lumber, Inc. v. Court of Appeals,^[35] this Court was faced with a similar task of having to define a term in Section 68 of PD 705 - "lumber" - to determine whether possession of lumber is punishable under that provision. In ruling in the affirmative, we held that "lumber" should be taken in its ordinary or common usage meaning to refer to "processed log or timber," thus:

The Revised Forestry Code contains no definition of either timber or lumber. While the former is included in forest products as defined in paragraph (q) of Section 3, the latter is found in paragraph (aa) of the same section in the definition of "Processing plant," which reads:

(aa) Processing plant is any mechanical set-up, machine or combination of machine used for the processing of logs and other forest raw materials into lumber, veneer, plywood, wallboard, blackboard, paper board, pulp, paper or other finished wood products.

This simply means that lumber is a processed log or processed forest raw material. Clearly, the Code uses the term lumber in its ordinary or common usage. In the 1993 copyright edition of Webster's Third New International Dictionary, lumber is defined, inter alia, as "timber or logs after being prepared for the market." Simply put, lumber is a processed log or timber.

It is settled that in the absence of legislative intent to the contrary, words and phrases used in a statute should be given their plain, ordinary, and common usage meaning. And in so far as possession of timber without the required legal documents is concerned, Section 68 of PD No. 705, as amended, makes no distinction between raw and procesed timber. Neither should we.^[36] x x x x (Italicization in the original; boldfacing supplied)

We see no reason why, as in Mustang, the term "timber" under Section 68 cannot be taken in its common acceptation as referring to "wood used for or suitable for building or for carpentry or joinery."^[37] Indeed, tree saplings or tiny tree stems that are too small for use as posts, panelling, beams, tables, or chairs cannot be considered timber.^[38]

Here, petitioner was charged with having felled a narra tree and converted the same into "several pieces of sawn lumber, about three (3) pcs. 2x16x6 and three (3) pcs. 2x18x7 x x x consisting of 111 board feet x x x." These measurements were indicated in the apprehension receipt Hernandez issued to petitioner on 26 January 1999 which the prosecution introduced in evidence.^[39] Further, Hernandez testified that the larger portion of the felled log left in the Mayod Property "measured 76 something centimeters [at the big end] while the smaller end measured 65 centimeters and the length was 2.8 meters."^[40] Undoubtedly, the narra tree petitioner felled and converted to lumber was "timber" fit "for building or for carpentry or joinery" and thus falls under the ambit of Section 68 of PD 705, as amended.


Violation of Section 68 of PD 705, as amended, is punishable as Qualified Theft under Article 310 in relation to Article 309 of the Revised Penal Code (RPC), thus:

Art. 310. Qualified theft. - The crime of qualified theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article x x x.

Art. 309. Penalties. - Any person guilty of theft shall be punished by:

1. The penalty of prisión mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusión temporal, as the case may be.
   
2. The penalty of prisión correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.
   
3. The penalty of prisión correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos.
   
4. Arresto mayor in its medium period to prisión correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos.
   
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.
   
6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.
   
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provisions of any of the five preceding subdivisions shall be made applicable.
   
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

The Information filed against petitioner alleged that the six pieces of lumber measuring 111 board feet were valued at P3,330. However, if the value of the log left at the Mayod Property is included, the amount increases to P20,930.40. To prove this allegation, the prosecution relied on Hernandez's testimony that these amounts, as stated in the apprehension receipt he issued, are his "estimates" based on "prevailing local price."^[41]

This evidence does not suffice. To prove the amount of the property taken for fixing the penalty imposable against the accused under Article 309 of the RPC, the prosecution must present more than a mere uncorroborated "estimate" of such fact.^[42] In the absence of independent and reliable corroboration of such estimate, courts may either apply the minimum penalty under Article 309 or fix the value of the property taken based on the attendant circumstances of the case.^[43] In People v. Dator^[44] where, as here, the accused was charged with violation of Section 68 of PD 705, as amended, for possession of lumber without permit, the prosecution's evidence for the lumber's value consisted of an estimate made by the apprehending authorities whose apparent lack of corroboration was compounded by the fact that the transmittal letter for the estimate was not presented in evidence. Accordingly, we imposed on the accused the minimum penalty under Article 309(6)^[45] of the RPC.^[46]

Applying Dator in relation to Article 310 of the RPC and taking into account the Indeterminate Sentence Law, we find it proper to impose on petitioner, under the circumstances obtaining here, the penalty of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, four (4) months and twenty-one (21) days of prision correcional, as maximum.

WHEREFORE, we AFFIRM the Decision dated 28 June 2002 and the Resolution dated 14 May 2003 of the Court of Appeals with the modification that petitioner Sesinando Merida is sentenced to four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, four (4) months and twenty-one (21) days of prision correcional, as maximum.

SO ORDERED.

Puno, (Chairperson), Corona, Azcuna and Leonardo-De Castro, JJ., concur.

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^[1] Under Rule 45 of the 1997 Rules of Civil Procedure.

^[2] Penned by Associate Justice Eliezer R. De Los Santos with Associate Justices Cancio C. Garcia (a retired member of this Court) and Marina L. Buzon, concurring.

^[3] Re-numbered as Section 77 under Section 7, Republic Act No. 7161.

^[4] The Revised Forestry Code.

^[5] Filed by petitioner's new counsel, Atty. Marcelino P. Arias.

^[6] The Information alleged (CA rollo, p. 10):

That on or about the 23^rd day of December 1998, in barangay Ipil, municipality of Magdiwang, province of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to gain, did then and there willfully, unlawfully, feloniously cut, gather, collect, remove and/or caused to be cut, gathered and removed one (1) narra tree [from] the private land owned by OSCAR M. TANSIONGCO and converted the same into several pieces of sawn lumber, about three (3) pcs. 2x16x6 and three (3) pcs. 2x18x7 narra sawn lumber were confiscated by the elements of the DENR personnel consisting of 111 board feet, valued in the sum of P3,330.00, Philippine currency, including the remaining felled narra tree showing the total amount of P20,930.40 due to the government, without having first secured and obtained the necessary permit or license and/or legal supporting documents from the proper authorities.

^[7] Other parts of the records place this date on 26 December 1998.

^[8] Imelda Muros.

^[9] Valued at P3,330.00. If a larger part of the narra tree, left at the Mayod Property, is included in the valuation, the total amount is P20,930.40. The Information filed against petitioner alleged the higher amount.

^[10] The records do not contain the results of the investigation.

^[11] Senior State Prosecutor-OIC PPO Francisco F. Benedicto, Jr.

^[12] The dispositive portion of the ruling provides (rollo, p. 31):

WHEREFORE, this Court finds the accused SESINANDO MERIDA GUILTY beyond reasonable doubt of the crime charged in the aforementioned Information, dated January 28, 2000, and hereby sentences him to an indeterminate sentence of from fourteen (14) years, eight (8) months and one (1) day to twenty (20) years of reclusion temporal, and to pay the costs.

^[13] The dispositive portion of the ruling provides (id. at 51):

WHEREFORE, premises considered, the 24 November 2000 trial court decision is AFFIRMED with MODIFICATION. Defendant-appellant is sentenced to an indeterminate penalty of 14 years, 8 months and 1 day of reclusion temporal as minimum to 17 years of reclusion temporal as maximum. The forest products derived from the narra tree, including the 6 pieces of lumber, are confiscated in favor of the government.

^[14] Id. at 51.

^[15] The Court of Appeals entered judgment on 27 August 2002.

^[16] Rollo, p. 14.

^[17] The OSG does not claim that this Court is precluded from reviewing the Court of Appeals' rulings for having attained finality. At any rate, the Court resolved to give due course to the petition in the interest of justice taking into account the nature of the case and the issues raised for resolution.

^[18] Section 5, Rule 110.

^[19] See People v. Mandia, 60 Phil. 372 (1934); People v. Trinidad, 58 Phil. 163 (1933).

^[20] Adultery, Concubinage, Seduction, Abduction, and Acts of Lasciviousness.

^[21] G.R. No. 46772, 13 February 1992, 206 SCRA 187.

^[22] Id. at 194.

^[23] It cannot be said, however, that Hernandez failed to act on Tansiongco's report as Hernandez conducted field investigation, oversaw the confiscation of the lumber, and took part in the subsequent DENR investigation.

^[24] Under Section 20 in relation to Section 32(2) of Batas Pambansa Blg. 129 as amended by Republic Act No. 7691, Regional Trial Courts are vested with exclusive original jurisdiction over offenses punishable with imprisonment exceeding six years. Here, the offense for which petitioner was charged is punishable by reclusion temporal in its medium and maximum periods (that is, 14 years, 8 months and 1 day to 20 years) and thus falls under the RTC Romblon's exclusive original jurisdiction.

^[25] The other acts penalized under PD 705, as amended by Presidential Decree No. 1559 and re-numbered by RA 7161, are: cutting, gathering and/or collecting timber or other products without license (Section 77); unlawful occupation or destruction of forest lands (Section 78); pasturing livestock (Section 79); illegal occupation of national parks system and recreation areas and vandalism therein (Section 80); destruction of wildlife resources (Section 81); survey by unauthorized person (Section 82); misclassification and survey by government official or employee (Section 83); tax declaration on real property (Section 84); coercion and influence (Section 85); unlawful possession of implements and devices used by forest officers (Section 86); payment, collection and remittance of forest charges (Section 87); and sale of wood products (Section 88).

^[26] Thus, there is no merit in petitioner's claim that Section 68 of PD 705 does not penalize the cutting of timber in private land.

^[27] In Mustang Lumber, Inc. v. Court of Appeals, (G.R. No. 104988, 18 June 1996, 257 SCRA 430), the acts falling under the first and second groups were lumped together. The elements for the criminal acts under the first and second groups are: (1) that the accused cut, gathered, collected, or removed timber of other forest products; (2) that the timber or other forest products cut, gathered, collected, or removed belong to the government or to any private individual; and (3) that the cutting, gathering, collecting, or removing was without authority under a license agreement, lease, license, or permit granted by the state (People v. CFI of Quezon, G.R. No. 46772, 13 February 1992, 206 SCRA 187).

^[28] It cannot be determined from the records if the Mayod Property is registered.

^[29] Under DENR Administrative Order No. 2000-21, dated 28 February 2000, private land owners are required to obtain a Special Private Land Timber Permit (SPLTP) from the DENR to cut, gather and utilize premium hardwood species, whether planted or naturally-grown.

^[30] Section 26, Rule 130 of the Rules of Court provides: "The act, declaration or omission of a party as to a relevant fact may be given in evidence against him."

^[31] Section 3(q), PD 705 provides: "Forest product means timber, pulpwood, firewood, bark, tree top, resin, gum, wood, oil, honey, beeswax, nipa, rattan, or other forest growth such as grass, shrub, and flowering plant, the associated water, fish, game, scenic, historical, recreational and geologic resources in forest lands." (Emphasis supplied)

^[32] Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430.

^[33] In the Pacific and Northwestern Region (Region 6) of the United States Forest Service, timber utilization limits are set as follows: length - 8 feet; diameter (breast-height) - 9 inches; and top diameter - 4 inches (see A Review of the Forest Practices Code of British Columbia and Fourteen other Jurisdictions Background Report - 1995 at http://www.for.gov.bc.ca/tasb/legsregs/westland

/report/2-3.htm [British Columbia Report]).

^[34] In the Baden-Wurttemberg State of the Federal Republic of Germany, the "stand ages" are: 50 years for coniferous stands and 70 years for deciduous stands (Section 16 of the Forest Law). In Sweden, the following are the minimum rotation age: conifer stands - 45 years to 100 years (depending on the quality of the site); hardwood stands - 35 years; and oak and beech trees - 100 years (see British Columbia Report).

^[35] Supra.

^[36] Supra at 448.

^[37] Webster's Third New International Dictionary (1996 ed.).

^[38] Wood pulps from timber can also be used for paper production.

^[39] Exh. "E."

^[40] RTC Decision, p. 4; Rollo, p. 25.

^[41] CA Decision, p. 8; Rollo, p. 42.

^[42] Lucas v. Court of Appeals, 438 Phil. 530 (2002). See also People v. Elizaga, 86 Phil. 364 (1950).

^[43] People v. Dator, 398 Phil. 109 (2000). The Court deems it improper to take judicial notice of the selling price of narra at the time of the commission of the offense in this case. Such evidence would both be unreliable and inconclusive considering the lack of independent and competent source of such information.

^[44] Supra.

^[45] Arresto mayor in its minimum and medium periods.

^[46] The Court also took into account the following circumstances: (1) the accused, a janitor, cut the pieces of soft lumber from his mother's landholding for use in renovating his house and (2) the accused had no prior record for violation of PD 705. Here, petitioner also appears to have no record for violation of PD 705.

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

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

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

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

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

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

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

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

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL, respondents.

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

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

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

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

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

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioners-in-intervention,

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

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

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

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

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

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

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

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

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

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

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

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

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

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), respondent-in-intervention.

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

D E C I S I O N

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Meanwhile, the City of Iligan¹⁶ filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent.

The Province of Zamboanga del Norte,¹⁷ Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members¹⁸ of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,¹⁹ docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and without operative effect, and that respondents be enjoined from executing the MOA-AD.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Solicitor General's arguments fail to persuade.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.¹⁰³ where the Court did not "pontificat[e] on issues which no longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:

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

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

An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will.¹³¹ Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback mechanisms.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government.

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

Keitner and Reisman state that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary¹⁵⁵ instructs:

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

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

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

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

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

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

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

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

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

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

The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

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

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

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

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

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

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

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to "internal self-determination."¹⁶⁶ The extent of self-determination provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted hereunder:

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

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

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

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

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

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

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

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

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

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

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

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

The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations, agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those solutions which the present laws allow? The answer to this question requires a discussion of the extent of the President's power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary,¹⁶⁸ in issue was the authority of the President to declare a state of rebellion - an authority which is not expressly provided for in the Constitution. The Court held thus:

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

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

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new constitutional structures addressing governance, elections, and legal and human rights institutions.¹⁷¹

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down as unconstitutional.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights.

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.

CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Separate Concurring Opinion - C.J. Puno, J. Ynares-Santiago, J. Carpio
Separate Concurring and Dissenting Opinion - J. Leonardo-De Castro, J. Brion
Separate Opinion - J. Azcuna, J. Tinga, J. Chico-Nazario, J. Reyes
Dissenting Opinion - J. Velasco, Jr., J. Nachura

EN BANC

CENTRAL BANK (now Bangko Sentral ng Pilipinas) EMPLOYEES ASSOCIATION, INC., petitioner,
vs.
BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE SECRETARY, respondents.

D E C I S I O N

First the facts.

On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect. It abolished the old Central Bank of the Philippines, and created a new BSP.

On June 8, 2001, almost eight years after the effectivity of R.A. No. 7653, petitioner Central Bank (now BSP) Employees Association, Inc., filed a petition for prohibition against BSP and the Executive Secretary of the Office of the President, to restrain respondents from further implementing the last proviso in Section 15(c), Article II of R.A. No. 7653, on the ground that it is unconstitutional.

Article II, Section 15(c) of R.A. No. 7653 provides:

Section 15. Exercise of Authority - In the exercise of its authority, the Monetary Board shall:

The thrust of petitioner's challenge is that the above proviso makes an unconstitutional cut between two classes of employees in the BSP, viz: (1) the BSP officers or those exempted from the coverage of the Salary Standardization Law (SSL) (exempt class); and (2) the rank-and-file (Salary Grade [SG] 19 and below), or those not exempted from the coverage of the SSL (non-exempt class). It is contended that this classification is "a classic case of class legislation," allegedly not based on substantial distinctions which make real differences, but solely on the SG of the BSP personnel's position. Petitioner also claims that it is not germane to the purposes of Section 15(c), Article II of R.A. No. 7653, the most important of which is to establish professionalism and excellence at all levels in the BSP.1 Petitioner offers the following sub-set of arguments: