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FULL CASES (H.R)

G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General
CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel
IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major
FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT
PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A.
Arcilla and S. Melville Hussey for respondents.
MORAN, C.J .:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 19433 and 19444
who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and other high
crimes against noncombatant civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and customs of war"
comes before this Court seeking to establish the illegality of
Executive Order No. 68 of the President of the Philippines: to enjoin
and prohibit respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case before the Military
Commission and to permanently prohibit respondents from
proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal
arguments.
First. "That Executive Order No. 68 is illegal on the ground that it
violates not only the provision of our constitutional law but also our
local laws to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is
charged of 'crimes' not based on law, national and international."
Hence petitioner argues "That in view off the fact that this
commission has been empanelled by virtue of an unconstitutional
law an illegal order this commission is without jurisdiction to try
herein petitioner."
Second. That the participation in the prosecution of the case
against petitioner before the Commission in behalf of the United
State of America of attorneys Melville Hussey and Robert Port who
are not attorneys authorized by the Supreme Court to practice law in
the Philippines is a diminution of our personality as an independent
state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law
in the Philippines.
Third. That Attorneys Hussey and Port have no personality as
prosecution the United State not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office
prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3,
that
The Philippines renounces war as an instrument of national
policy and adopts the generally accepted principles of
international law as part of the of the nation.
In accordance with the generally accepted principle of international
law of the present day including the Hague Convention the Geneva
Convention and significant precedents of international jurisprudence
established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of
aggression and of the commission of crimes and offenses
consequential and incidental thereto in violation of the laws and
customs of war, of humanity and civilization are held accountable
therefor. Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has acted in
conformity with the generally accepted and policies of international
law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the
President of his power as Commander in chief of all our armed
forces as upheld by this Court in the case of Yamashita vs. Styer (L-
129, 42 Off. Gaz., 664) 1 when we said
War is not ended simply because hostilities have ceased.
After cessation of armed hostilities incident of war may
remain pending which should be disposed of as in time of
war. An importance incident to a conduct of war is the
adoption of measure by the military command not only to
repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to
thwart or impede our military effort have violated the law of
war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed
the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war.
And in the language of a writer a military commission has
jurisdiction so long as a technical state of war continues.
This includes the period of an armistice or military
occupation up to the effective of a treaty of peace and may
extend beyond by treaty agreement. (Cowles Trial of
War Criminals by Military Tribunals, America Bar
Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully
empowered to consummate this unfinished aspect of war namely
the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no
Jurisdiction to try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only
in 1947. It cannot be denied that the rules and regulation of the
Hague and Geneva conventions form, part of and are wholly based
on the generally accepted principals of international law. In facts
these rules and principles were accepted by the two belligerent
nation the United State and Japan who were signatories to the two
Convention, Such rule and principles therefore form part of the law
of our nation even if the Philippines was not a signatory to the
conventions embodying them for our Constitution has been
deliberately general and extensive in its scope and is not confined to
the recognition of rule and principle of international law as continued
inn treaties to which our government may have been or shall be a
signatory.
Furthermore when the crimes charged against petitioner were
allegedly committed the Philippines was under the sovereignty of
United States and thus we were equally bound together with the
United States and with Japan to the right and obligation contained in
the treaties between the belligerent countries. These rights and
obligation were not erased by our assumption of full sovereignty. If
at all our emergency as a free state entitles us to enforce the right
on our own of trying and punishing those who committed crimes
against crimes against our people. In this connection it is well to
remember what we have said in the case of Laurel vs. Misa (76
Phil., 372):
. . . The change of our form government from
Commonwealth to Republic does not affect the prosecution
of those charged with the crime of treason committed
during then Commonwealth because it is an offense
against the same sovereign people. . . .
By the same token war crimes committed against our people and
our government while we were a Commonwealth are triable and
punishable by our present Republic.
Petitioner challenges the participation of two American attorneys
namely Melville S. Hussey and Robert Port in the prosecution of his
case on the ground that said attorney's are not qualified to practice
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law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our
national sovereignty.
In the first place respondent Military Commission is a special military
tribunal governed by a special law and not by the Rules of court
which govern ordinary civil court. It has already been shown that
Executive Order No. 68 which provides for the organization of such
military commission is a valid and constitutional law. There is
nothing in said executive order which requires that counsel
appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court.
In facts it is common in military tribunals that counsel for the parties
are usually military personnel who are neither attorneys nor even
possessed of legal training.
Secondly the appointment of the two American attorneys is not
violative of our nation sovereignty. It is only fair and proper that
United States, which has submitted the vindication of crimes against
her government and her people to a tribunal of our nation should be
allowed representation in the trial of those very crimes. If there has
been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded
to us the trial and punishment of her enemies. The least that we
could do in the spirit of comity is to allow them representation in said
trials.
Alleging that the United State is not a party in interest in the case
petitioner challenges the personality of attorneys Hussey and Port
as prosecutors. It is of common knowledge that the United State and
its people have been equally if not more greatly aggrieved by the
crimes with which petitioner stands charged before the Military
Commission. It can be considered a privilege for our Republic that a
leader nation should submit the vindication of the honor of its
citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid
law with jurisdiction over the crimes charged which fall under the
provisions of Executive Order No. 68, and having said petitioner in
its custody, this Court will not interfere with the due process of such
Military commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes,
JJ., concur.

Separate Opinions
PERFECTO, J ., dissenting:
A military commission was empanelled on December 1, 1948 to try
Lt. Gen. Shigenori Kuroda for Violation of the laws and customs of
land warfare.
Melville S. Hussey and Robert Port, American citizens and not
authorized by the Supreme Court to practice law were appointed
prosecutor representing the American CIC in the trial of the case.
The commission was empanelled under the authority of Executive
Order No. 68 of the President of the Philippines the validity of which
is challenged by petitioner on constitutional grounds. Petitioner has
also challenged the personality of Attorneys Hussey and Port to
appear as prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948 in
the name of the people of the Philippines as accusers.
We will consideration briefly the challenge against the appearance
of Attorneys Hussey and Port. It appearing that they are aliens and
have not been authorized by the Supreme Court to practice law
there could not be any question that said person cannot appear as
prosecutors in petitioner case as with such appearance they would
be practicing law against the law.
Said violation vanishes however into insignificance at the side of the
momentous question involved in the challenge against the validity of
Executive Order No. 68. Said order is challenged on several
constitutional ground. To get a clear idea of the question raised it is
necessary to read the whole context of said order which is
reproduced as follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES
OFFICE AND PRESCRIBING RULES AND
REGULATION GOVERNING THE TRIAL OF
ACCUSED WAR CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the
power vested in me by the Constitution and laws of the
Philippines do hereby establish a National War Crimes
Office charged with the responsibility of accomplishing the
speedy trial of all Japanese accused of war crimes
committed in the Philippines and prescribe the rules and
regulation such trial.
The National War crimes office is established within the
office of the Judge Advocate General of the Army of the
Philippines and shall function under the direction
supervision and control of the Judge Advocate General. It
shall proceed to collect from all available sources evidence
of war crimes committed in the Philippines from the
commencement of hostilities by Japan in December 1941,
maintain a record thereof and bring about the prompt trial
maintain a record thereof and bring about the prompt trial
of the accused.
The National War Crimes Office shall maintain direct liaison
with the Legal Section General Headquarters, Supreme
Commander for the Allied power and shall exchange with
the said Office information and evidence of war crimes.
The following rules and regulation shall govern the trial off
person accused as war criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. person accused as war criminal shall be
tried by military commission to be convened by or under
the authority of the Philippines.
II. JURISDICTION
(a) Over Person. Thee military commission appointed
hereunder shall have jurisdiction over all persons charged
with war crimes who are in the custody of the convening
authority at the time of the trial.
(b) Over Offenses. The military commission established
hereunder shall have jurisdiction over all offenses including
but not limited to the following:
(1) The planning preparation initiation or waging of a war of
aggression or a war in violation of international treaties
agreement or assurance or participation in a common plan
or conspiracy for the accomplishment of any of the
foregoing.
(2) Violation of the laws or customs of war. Such violation
shall include but not be limited to murder ill-treatment or
deportation to slave labor or for other purpose of civilian
population of or in occupied territory; murder or ill-treatment
of prisoners of war or internees or person on the seas or
elsewhere; improper treatment of hostage; plunder of
public or private property wanton destruction of cities towns
or village; or devastation not justified by military necessity.
(3) Murder extermination enslavement deportation and
other inhuman acts committed against civilian population
before or during the war or persecution on political racial or
religion ground in executive of or in connection with any
crime defined herein whether or not in violation of the local
laws.
III. MEMBERSHIP OF COMMISSIONS
(a) Appointment. The members of each military
commission shall be appointed by the President of the
Philippines or under authority delegated by him. Alternates
may be appointed by the convening authority. Such shall
attend all session of the commission, and in case of illness
or other incapacity of any principal member, an alternate
shall take the place of that member. Any vacancy among
the members or alternates, occurring after a trial has
begun, may be filled by the convening authority but the
substance of all proceeding had evidence taken in that
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case shall be made known to the said new member or
alternate. This facts shall be announced by the president of
the commission in open court.
(b) Number of Members. Each commission shall consist
of not less than three (3) members.
(c) Qualifications. The convening authority shall appoint
to the commission persons whom he determines to be
competent to perform the duties involved and not
disqualified by personal interest or prejudice, provided that
no person shall be appointed to hear a case in which he
personally investigated or wherein his presence as a
witness is required. One specially qualified member whose
ruling is final in so far as concerns the commission on an
objection to the admissibility of evidence offered during the
trial.
(d) Voting. Except as to the admissibility of evidence all
rulings and finding of the Commission shall be by majority
vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence
shall be by the affirmative vote of not less than two-thirds
(2\3) of the member present.
(e) Presiding Member. In the event that the convening
authority does not name one of the member as the
presiding member, the senior officer among the member of
the Commission present shall preside.
IV. PROSECUTORS
(a) Appointment. The convening authority shall
designate one or more person to conduct the prosecution
before each commission.
(b) Duties. The duties of the prosecutor are:
(1) To prepare and present charges and specifications for
reference to a commission.
(2) To prepare cases for trial and to conduct the
prosecution before the commission of all cases referred for
trial.
V. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. A Commission shall:
(1) Confine each trial strictly to fair and expeditious hearing
on the issues raised by the charges, excluding irrelevant
issues or evidence and preventing any unnecessary delay
or interference.
(2) Deal summarily with any contumacy or contempt,
imposing any appropriate punishment therefor.
(3) Hold public session when otherwise decided by the
commission.
(4) Hold each session at such time and place as it shall
determine, or as may be directed by the convening
authority.
(b) Rights of the Accused. The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges
and specifications clearly worded so as to apprise the
accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel
appointed by the convening authority or counsel of his own
choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel
present relevant evidence at the trial in support of his
defense, and cross-examine each adverse witness who
personally appears before the commission.
(4) To have the substance of the charges and
specifications, the proceedings and any documentary
evidence translated, when he is unable otherwise to
understand them.
(c) Witnesses. The Commission shall have power:
(1) To summon witnesses and require their attendance and
testimony; to administer oaths or affirmations to witnesses
and other persons and to question witnesses.
(2) To require the production of documents and other
evidentiary material.
(3) To delegate the Prosecutors appointed by the
convening authority the powers and duties set forth in (1)
and (2) above.
(4) To have evidence taken by a special commissioner
appointed by the commission.
(d) Evidence.
(1) The commission shall admit such evidence as in its
opinion shall be of assistance in proving or disproving the
charge, or such as in the commission's opinion would have
probative value in the mind of a reasonable man. The
commission shall apply the rules of evidence and pleading
set forth herein with the greatest liberality to achieve
expeditious procedure. In particular, and without limiting in
any way the scope of the foregoing general rules, the
following evidence may be admitted:
(a) Any document, irrespective of its classification, which
appears to the commission to have been signed or issued
by any officer, department, agency or member of the armed
forces of any Government without proof of the signature or
of the issuance of the document.
(b) Any report which appears to the commission to have
been signed or issued by the International Red Cross or a
member of any medical service personnel, or by any
investigator or intelligence officer, or by any other person
whom commission considers as possessing knowledge of
the matters contained in the report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn
statements, appearing to the commission to contain
information relating to the charge.
(e) A copy of any document or other secondary evidence of
the contents, if the original is not immediately available.
(2) The commission shall take judicial notice of facts of
common knowledge, official government documents of any
nation, and the proceedings, records and findings of
military or other agencies of any of the United Nation.
(3) A commission may require the prosecution and the
defense to make a preliminary offer of proof whereupon the
commission may rule in advance on the admissibility of
such evidence.
(4) The official position of the accused shall not absolve
him from responsibility nor be considered in mitigation of
punishment. Further action pursuant to an order of the
accused's superior, or of his Government, shall not
constitute a defense, but may be considered in mitigation of
punishment if the commission determines that justice so
requires.
(5) All purposed confessions or statements of the accused
shall bee admissible in evidence without any showing that
they were voluntarily made. If it is shown that such
confession or statement was procured by mean which the
commission believe to have been of such a character that
may have caused the accused to make a false statement
the commission may strike out or disregard any such
portion thereof as was so procured.
(e) Trial Procedure. The proceedings of each trial shall
be conducted substantially as follows unless modified by
the commission to suit the particular circumstances:
(1) Each charge and specification shall be read or its
substance stated in open court.
(2) The presiding member shall ask each accused whether
he pleads "Guilty" or "Not guilty."
(3) The prosecution shall make its opening statement."(4)
The presiding member may at this or any other time require
the prosecutor to state what evidence he proposes to
submit to the commission and the commission thereupon
may rule upon the admissibility of such evidence.
(4) The witnesses and other evidence for the prosecution
shall be heard or presented. At the close of the case for the
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prosecution, the commission may, on motion of the
defense for a finding of not guilty, consider and rule
whether he evidence before the commission may defer
action on any such motion and permit or require the
prosecution to reopen its case and produce any further
available evidence.
(5) The defense may make an opening statement prior to
presenting its case. The presiding member may, at this any
other time require the defense to state what evidence it
proposes to submit to the commission where upon the
commission may rule upon the admissibility of such
evidence.
(6) The witnesses and other evidence for the defense shall
be heard or presented. Thereafter, the prosecution and
defense may introduce such evidence in rebuttal as the
commission may rule as being admissible.
(7) The defense and thereafter the prosecution shall
address the commission.
(8) The commission thereafter shall consider the case in
closed session and unless otherwise directed by the
convening authority, announce in open court its judgment
and sentence if any. The commission may state the reason
on which judgment is based.
( f ) Record of Proceedings. Each commission shall
make a separate record of its proceeding in the trial of each
case brought before it. The record shall be prepared by the
prosecutor under the direction of the commission and
submitted to the defense counsel. The commission shall be
responsible for its accuracy. Such record, certified by the
presiding member of the commission or his successor,
shall be delivered to the convening authority as soon as
possible after the trial.
(g) Sentence. The commission may sentence an
accused, upon conviction to death by hanging or shooting,
imprisonment for life or for any less term, fine or such other
punishment as the commission shall determine to be
proper.
(h) Approval of Sentence. No. sentence of a military
commission shall be carried into effect until approved by
the chief off Staff: Provided, That no sentence of death or
life imprisonment shall be carried into execution until
confirmed by the President of the Philippines. For the
purpose of his review the Chief of Staff shall create a Board
of Review to be composed of not more than three officers
none of whom shall be on duty with or assigned to the
Judge Advocate General's Office. The Chief of Staff shall
have authority to approve, mitigate remit in whole or in part,
commute, suspend, reduce or otherwise alter the sentence
imposed, or (without prejudice to the accused) remand the
case for rehearing before a new military commission; but
he shall not have authority to increase the severity of the
sentence. Except as herein otherwise provided the
judgment and sentence of a commission shall final and not
subject to review by any other tribunal.
VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall
adopt rules and forms to govern its procedure, not
inconsistent with the provision of this Order, or such rules
and forms as may be prescribed by the convening
authority]or by the President of the Philippines.
VII. The amount of amount of seven hundred thousand
pesos is hereby set aside out of the appropriations for the
Army of the Philippines for use by the National War Crimes
Office in the accomplishment of its mission as hereinabove
set forth, and shall be expended in accordance with the
recommendation of the Judge Advocate General as
approved by the President. The buildings, fixtures,
installations, messing, and billeting equipment and other
property herefore used by then Legal Section, Manila
Branch, of the General Headquarters, Supreme
Commander for the Allied Power, which will be turned over
by the United States Army to the Philippines Government
through the Foreign Liquidation Commission and the
Surplus Property Commission are hereby specification
reserved for use off the National War Crimes Office.
Executive Order No. 64, dated August 16, 1945, is hereby
repealed.
Done in the City of Manila, this 29th day of July in the year
of Our Lord, nineteen hundred and forty-seven, and of the
Independence of the Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMILIO ABELLO
Chief of the Executive Office
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure,
without the benefit of congressional enactment.
The first question that is trust at our face spearheading a group of
other no less important question, is whether or not the President of
the Philippines may exercise the legislative power expressly vested
in Congress by the Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of
the Philippines which shall consist of a Senate and House
of Representatives. (Section 1, Article VI.)
While there is no express provision in the fundamental law
prohibiting the exercise of legislative power by agencies other than
Congress, a reading of the whole context of the Constitution would
dispel any doubt as to the constitutional intent that the legislative
power is to be exercised exclusively by Congress, subject only to
the veto power of the President of the President of the Philippines,
to the specific provision which allow the president of the Philippines
to suspend the privileges of the writ of habeas corpus and to place
any part of the Philippines under martial law, and to the rule-making
power expressly vested by the Constitution in the Supreme Court.
There cannot be any question that the member of the Constitutional
Convention were believers in the tripartite system of government as
originally enunciated by Aristotle, further elaborated by Montequieu
and accepted and practiced by modern democracies, especially the
United State of America, whose Constitution, after which ours has
been patterned, has allocated the three power of government
legislative, executive, judicial to distinct and separate department
of government.
Because the power vested by our Constitution to the several
department of the government are in the nature of grants, not
recognition of pre-existing power, no department of government may
exercise any power or authority not expressly granted by the
Constitution or by law by virtue express authority of the Constitution.
Executive Order No. 68 establishes a National War Crimes Office
and the power to establish government office is essentially
legislative.
The order provides that person accused as war criminals shall be
tried by military commissions. Whether such a provision is
substantive or adjective, it is clearly legislative in nature. It confers
upon military commissions jurisdiction to try all persons charge with
war crimes. The power to define and allocate jurisdiction for the
prosecution of person accused of any crime is exclusively vested by
the Constitution in Congress. .
It provides rules of procedure for the conduct of trial of trial. This
provision on procedural subject constitutes a usurpation of the rule-
making power vested by Constitution in the Supreme Court.
It authorized military commission to adopt additional rule of
procedure. If the President of the Philippines cannot exercise the
rule -making power vested by the Constitution in the Supreme Court,
he cannot, with more reason, delegate that power to military
commission.
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It appropriates the sum of P7000,000 for the expenses of the
National War Crimes office established by the said Executive Order
No. 68. This constitutes another usurpation of legislative power as
the power to vote appropriations belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because,
though it the President of the Philippines usurped power expressly
vested by the Constitution in Congress and in the Supreme Court.
Challenged to show the constitutional or legal authority under which
the President issued Executive Order No. 68, respondent could not
give any definite answer. They attempted, however, to suggest that
the President of the Philippines issued Executive Order No. 68
under the emergency power granted to him by Commonwealth Act
No. 600, as amended by Commonwealth Act No. 620, and
Commonwealth Act No. 671, both of which are transcribed below:

COMMONWEALTH ACT NO. 600.
AN ACT DECLARING A STATE OF
EMERGENCY AND AUTHORIZING THE
PRESIDENT TO PROMULGATE RULES AND
REGULATION TO SAFEGUARD THE
INTEGRITY OF THE PHILIPPINES AND TO
INSURE THE TRANQUILITY OF ITS
INHABITANTS.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war in many parts of the
world has created a national emergency which makes it
necessary to invest the President of the Philippines with
extraordinary power in order to safeguard the integrity of
the Philippines and to insure the tranquility of its
inhabitants, by suppressing espionage, lawlessness, and
all subversive to the people adequate shelter and clothing
and sufficient food supply, and by providing means for the
speedy evacuation of the civilian population the
establishment of an air protective service and the
organization of volunteer guard units, and to adopt such
other measures as he may deem necessary for the interest
of the public. To carry out this policy the President is
authorized to promulgate rules and regulations which shall
have the force and effect off law until the date of
adjournment of the next regulation which shall have the
force and effect of law until the date of adjournment of the
next regular session of the First Congress of the
Philippines, unless sooner amended or repealed by the
Congress of Philippines. Such rules and regulation may
embrace the following objects: (1) to suppress espionage
and other subversive activities; (2) to require all able-
bodied citizens (a) when not engaged in any lawful
occupation, to engage in farming or other productive
activities or (b) to perform such services as may bee
necessary in the public interest; (3) to take over farm lands
in order to prevent or shortage of crops and hunger and
destitution; (4) to take over industrial establishment in order
to insure adequate production, controlling wages and
profits therein; (5) to prohibit lockouts and strikes whenever
necessary to prevent the unwarranted suspension of work
in productive enterprises or in the interest of national
security; (6) to regulate the normal hours of work for wage-
earning and salaried employees in industrial or business
undertakings of all kinds; (7) to insure an even distribution
of labor among the productive enterprises; (8) to
commandership and other means of transportation in order
to maintain, as much as possible, adequate and continued
transportation facilities; (9) to requisition and take over any
public service or enterprise for use or operation by the
Government;(10) to regulate rents and the prices of articles
or commodities of prime necessity, both imported and
locally produced or manufactured; and (11) to prevent,
locally or generally, scarcity, monopolization, hoarding
injurious speculations, and private control affecting the
supply, distribution and movement of foods, clothing, fuel,
fertilizer, chemical, building, material, implements,
machinery, and equipment required in agriculture and
industry, with power to requisition these commodities
subject to the payment of just compensation. (As amended
by Com. Act No. 620.)
SEC. 2. For the purpose of administering this Act and
carrying out its objective, the President may designate any
officer, without additional compensation, or any
department, bureau, office, or instrumentality of the
National Government.
SEC. 3. Any person, firm, or corporation found guilty of the
violation of any provision of this Act or of this Act or any of
the rules or regulations promulgated by the President under
the authority of section one of this Act shall be punished by
imprisonment of not more than ten years or by a fine of not
more than ten thousand pesos, or by both. If such violation
is committed by a firm or corporation, the manager,
managing director, or person charge with the management
of the business of such firm, or corporation shall be
criminally responsible therefor.
SEC. 4. The President shall report to the national Assembly
within the first ten days from the date of the opening of its
next regular session whatever action has been taken by
him under the authority herein granted.
SEC. 5. To carry out the purposed of this Act, the President
is authorized to spend such amounts as may be necessary
from the sum appropriated under section five
Commonwealth Act Numbered four hundred and ninety-
eight.
SEC. 6. If any province of this Act shall be declared by any
court of competent jurisdiction to be unconstitutional and
void, such declaration shall not invalidate the remainder of
this Act.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671
AN ACT DECLARING A STATE OF TOTAL
EMERGENCY AS A RESULT OF WAR
INVOLVING THE PHILIPPINES AND
AUTHORIZING THE PRESIDENT TO
PROMULGATE RULE AND REGULATIONS TO
MEET SUCH EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTION 1. The existed of war between the United State
and other countries of Europe and Asia, which involves the
Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting
emergency.
SEC. 2. Pursuant to the provision of Article VI, section 16,
of the Constitution, the President is hereby authorized,
during the existence of the emergency, to promulgate such
rules and regulation as he may deem necessary to carry
out the national policy declared in section 1 hereof.
Accordingly, he is, among other things, empowered (a) to
transfer the seat of the Government or any of its
subdivisions, branches, department, offices, agencies or
instrumentalities; (b) to reorganize the Government of the
Commonwealth including the determination of the order of
precedence of the heads of the Executive Department; (c)
to create new subdivision, branches, departments, offices,
agency or instrumentalities of government and to abolish
any of those already existing; (d) to continue in force laws
and appropriation which would lapse or otherwise became
inoperative, and to modify or suspend the operation or
application of those of an administrative character; (e) to
imposed new taxes or to increase, reduce, suspend, or
abolish those in existence; (f) to raise funds through the
6

issuance of bonds or otherwise, and to authorize the
expensive of the proceeds thereof; (g) to authorize the
National, provincial, city or municipal governments to incur
in overdrafts for purposes that he may approve; (h) to
declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other power as
he may deem necessary to enable the Government to fulfill
its responsibilities and to maintain and enforce its authority.
SEC. 3. The President of the Philippines report thereto all
the rules and regulation promulgated by him under the
power herein granted.
SEC. 4. This Act shall take effect upon its approval and the
rules and regulations. promulgated hereunder shall be in
force and effect until the Congress of the Philippines shall
otherwise provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68
was issued on July 29, 1947. Said Acts had elapsed upon the
liberation of the Philippines form the Japanese forces or, at the
latest, when the surrender of Japan was signed in Tokyo on
September 2, 1945.
When both Acts were enacted by the Second National Assembly,
we happened to have taken direct part in their consideration and
passage, not only as one of the members of said legislative body as
chairman of the Committee on Third Reading population Known as
the "Little Senate." We are, therefore in a position to state that said
measures were enacted by the second national Assembly for the
purpose of facing the emergency of impending war and of the
Pacific War that finally broke out with the attack of Pearl Harbor on
December 7, 1941. We approved said extraordinary measures, by
which under the exceptional circumstances then prevailing
legislative power were delegated to the President of the Philippines,
by virtue of the following provisions of the Constitution:
In time of war or other national emergency, the Congress
may by law authorize the President, for a limited period and
subject to such restrictions as it may prescribe to
promulgate rules and regulations to carry out declared
national policy. (Article VI, section 26.)
It has never been the purpose of the National Assembly to extend
the delegation beyond the emergency created by the war as to
extend it farther would be violative of the express provision of the
Constitution. We are of the opinion that there is no doubt on this
question.; but if there could still be any the same should be resolved
in favor of the presumption that the National Assembly did not intend
to violate the fundamental law.
The absurdity of the contention that the emergency Acts continued
in effect even after the surrender of Japan can not be gainsaid. Only
a few months after liberation and even before the surrender of
Japan, or since the middle of 1945, the Congress started to function
normally. In the hypothesis that the contention can prevail, then,
since 1945, that is, four years ago, even after the Commonwealth
was already replaced by the Republic of the Philippines with the
proclamation of our Independence, two district, separate and
independence legislative organs, Congress and the President of
the Philippines would have been and would continue enacting
laws, the former to enact laws of every nature including those of
emergency character, and the latter to enact laws, in the form of
executive orders, under the so-called emergency powers. The
situation would be pregnant with dangers to peace and order to the
rights and liberties of the people and to Philippines democracy.
Should there be any disagreement between Congress and the
President of the Philippines, a possibility that no one can dispute the
President of the Philippines may take advantage of he long recess
of Congress (two-thirds of every year ) to repeal and overrule
legislative enactments of Congress, and may set up a veritable
system of dictatorship, absolutely repugnant to the letter and spirit of
the Constitution.
Executive Order No. 68 is equally offensive to the Constitution
because it violates the fundamental guarantees of the due process
and equal protection of the law. It is especially so, because it permit
the admission of many kinds evidence by which no innocent person
can afford to get acquittal and by which it is impossible to determine
whether an accused is guilty or not beyond all reasonable doubt.
The rules of evidence adopted in Executive Order No. 68 are a
reproduction of the regulation governing the trial of twelve criminal,
issued by General Douglas Mac Arthur, Commander in Chief of the
United State Armed Forces in Western Pacific, for the purpose of
trying among other, General Yamashita and Homma. What we said
in our concurring and dissenting opinion to the decision promulgated
on December 19, 1945, in the Yamashita case, L-129, and in our
concurring and dissenting opinion to the resolution of January 23,
1946 in disposing the Homma case, L-244, are perfectly applicable
to the offensive rules of evidence in Executive Order No. 68. Said
rules of evidence are repugnant to conscience as under them no
justice can expected.
For all the foregoing, conformably with our position in the Yamashita
and Homma cases, we vote to declare Executive Order No. 68 null
and void and to grant petition.

EN BANC

GEN. AVELINO I. RAZON, JR., Chief,
Philippine National Police (PNP); Police
Chief Superintendent RAUL
CASTAEDA, Chief, Criminal
Investigation and Detection Group
(CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police
Anti-Crime and Emergency Response
(PACER); and GEN. JOEL R. GOLTIAO,
Regional Director of ARMM, PNP,
Petitioners,

- versus -


MARY JEAN B. TAGITIS, herein
represented by ATTY. FELIPE P.
ARCILLA, JR., Attorney-in-Fact,
Respondent.

G.R. No. 182498
Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.



Promulgated:

December 3, 2009

x
D E C I S I O N
BRION, J .:

We review in this petition for review on certiorari
[1]
the decision dated
March 7, 2008 of the Court of Appeals (CA) in C.A-
G.R. AMPARO No. 00009.
[2]
This CA decision confirmed the
enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and
granted the Writ of Amparo at the petition of his wife, Mary Jean B.
Tagitis (respondent). The dispositive portion of the CA decision
reads:

WHEREFORE, premises considered, petition is
hereby GRANTED. The Court hereby FINDS that this is
an enforced disappearance within the meaning of the United
Nations instruments, as used in the Amparo
Rules. The privileges of the writ of amparo are hereby extended to
Engr. Morced Tagitis.

Consequently: (1) respondent GEN. EDGARDO M. DOROMAL,
Chief, Criminal Investigation and Detention Group (CIDG) who
should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief,
7

Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
RAZON, Chief, PNP, who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director of ARMM
PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE
TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO
A. ESPINA, Chief, Police Anti-Crime and Emergency Response, to
aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect the
life, liberty and security of Engr. Morced Tagitis, but also to extend
the privileges of the writ of amparo to Engr. Morced Tagitis and his
family, and to submit a monthly report of their actions to this Court,
as a way of PERIODIC REVIEW to enable this Court to monitor the
action of respondents.

This amparo case is hereby DISMISSED as to respondent LT. GEN.
ALEXANDER YANO, Commanding General, Philippine Army, and
as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task
Force Comet, Zamboanga City, both being with the military, which is
a separate and distinct organization from the police and the CIDG, in
terms of operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo a
protective remedy against violations or threats of violation against
the rights to life, liberty and security.
[3]
It embodies, as a remedy,
the courts directive to police agencies to undertake specified
courses of action to address the disappearance of an individual, in
this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate
remedies to address the disappearance. Responsibility refers to
the extent the actors have been established by substantial evidence
to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court
shall craft, among them, the directive to file the appropriate criminal
and civil cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure of
remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level
of their complicity to the level of responsibility defined above; or who
are imputed with knowledge relating to the enforced disappearance
and who carry the burden of disclosure; or those who carry, but
have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the
issuance of the Writ of Amparo is justified by our primary goal of
addressing the disappearance, so that the life of the victim is
preserved and his liberty and security are restored.

We highlight this nature of a Writ of Amparo case at the outset
to stress that the unique situations that call for the issuance of the
writ, as well as the considerations and measures necessary to
address these situations, may not at all be the same as the standard
measures and procedures in ordinary court actions and
proceedings. In this sense, the Rule on the Writ
of Amparo
[4]
(Amparo Rule) issued by this Court is
unique. The Amparo Rule should be read, too, as a work in
progress, as its directions and finer points remain to evolve through
time and jurisprudence and through the substantive laws that
Congress may promulgate.

THE FACTUAL ANTECEDENTS

The background facts, based on the petition and the records of
the case, are summarized below.

The established facts show that Tagitis, a consultant for the
World Bank and the Senior Honorary Counselor for the Islamic
Development Bank (IDB) Scholarship Programme, was last seen in
Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB
scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They
immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following day
to Zamboanga. When Kunnong returned from this errand, Tagitis
was no longer around.
[5]
The receptionist related that Tagitis went
out to buy food at around 12:30 in the afternoon and even left his
room key with the desk.
[6]
Kunnong looked for Tagitis and even sent
a text message to the latters Manila-based secretary who did not
know of Tagitis whereabouts and activities either; she advised
Kunnong to simply wait.
[7]


On November 4, 2007, Kunnong and Muhammad Abdulnazeir
N. Matli, a UP professor of Muslim studies and Tagitis fellow
student counselor at the IDB, reported Tagitis disappearance to the
Jolo Police Station.
[8]
On November 7, 2007, Kunnong executed a
sworn affidavit attesting to what he knew of the circumstances
surrounding Tagitis disappearance.
[9]


More than a month later (on December 28, 2007), the
respondent filed a Petition for the Writ of Amparo (petition) with the
CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.
[10]
The
petition was directed against Lt. Gen. Alexander Yano, Commanding
General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine
National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal
Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A.
Espina, Chief, Police Anti-Crime and Emergency Response; Gen.
Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben
Rafael, Chief, Anti-Terror Task Force Comet [collectively referred to
as petitioners]. After reciting Tagitis personal circumstances and the
facts outlined above, the petition went on to state:

x x x
x

7. Soon after the student left the room, Engr. Tagitis went
out of the pension house to take his early lunch but while out on the
street, a couple of burly men believed to be police intelligence
operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away without the knowledge of his student,
Arsimin Kunnong;

8. As instructed, in the late afternoon of the same day,
Kunnong returned to the pension house, and was surprised to find
out that subject Engr. Tagitis cannot [sic] be contacted by phone and
was not also around and his room was closed and locked;

9. Kunnong requested for the key from the desk of the
pension house who [sic] assisted him to open the room of Engr.
Tagitis, where they discovered that the personal belongings of Engr.
Tagitis, including cell phones, documents and other personal
belongings were all intact inside the room;

10. When Kunnong could not locate Engr. Tagitis, the
former sought the help of another IDB scholar and reported the
matter to the local police agency;

11. Arsimin Kunnong including his friends and
companions in Jolo, exerted efforts in trying to locate the
whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could have been abducted by the Abu Sayyaf
group and other groups known to be fighting against the
government;

12. Being scared with [sic] these suggestions and
insinuations of the police officers, Kunnong reported the matter to
the [respondent, wife of Engr. Tagitis] by phone and other
responsible officers and coordinators of the IDB Scholarship
8

Programme in the Philippines, who alerted the office of the Governor
of ARMM who was then preparing to attend the OIC meeting in
Jeddah, Saudi Arabia;

13. [Respondent], on the other hand, approached some
of her co-employees with the Land Bank in Digos branch, Digos
City, Davao del Sur who likewise sought help from some of their
friends in the military who could help them find/locate the
whereabouts of her husband;

14. All of these efforts of the [respondent] did not
produce any positive results except the information from persons in
the military who do not want to be identified that Engr. Tagitis is in
the hands of the uniformed men;

15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with
the different terrorist groups;

x x x
x

17. [Respondent] filed her complaint with the PNP Police
Station in the ARMM in Cotobato and in Jolo, as suggested by her
friends, seeking their help to find her husband, but [respondents]
request and pleadings failed to produce any positive results;

18. Instead of helping the [respondent], she [sic] was told
of an intriguing tale by the police that her husband, subject of the
petition, was not missing but was with another woman having good
time somewhere, which is a clear indication of the [petitioners]
refusal to help and provide police assistance in locating her missing
husband;

19. The continued failure and refusal of the [petitioners]
to release and/or turn-over subject Engr. Tagitis to his family or even
to provide truthful information to [the respondent] of the subjects
whereabouts, and/or allow [the respondent] to visit her husband
Engr. Morced Tagitis, caused so much sleepless nights and serious
anxieties;

20. Lately, [the respondent] was again advised by one of
the [petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters including
[those] in Davao City, in Zamboanga City, in Jolo, and in Camp
Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for
her trips to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives only to try
complying [sic] to the different suggestions of these police officers,
despite of which, her efforts produced no positive results up to the
present time;

21. In fact at times, some police officers, who
[sympathized with] the sufferings undergone by the
[respondent], informed her that they are not the proper persons that
she should approach, but assured her not to worry because her
husband is [sic] in good hands;

22. The unexplained uncooperative behavior of the
[petitioners] to the [respondents] request for help and failure and
refusal of the [petitioners] to extend the needed help, support and
assistance in locating the whereabouts of Engr. Tagitis who had
been declared missing since October 30, 2007 which is almost two
(2) months now, clearly indicates that the [petitioners] are actually in
physical possession and custody of [respondents] husband, Engr.
Tagitis;

x x x
x

25. [The respondent] has exhausted all administrative
avenues and remedies but to no avail, and under the circumstances,
[the respondent] has no other plain, speedy and adequate remedy to
protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of the [petitioners], their intelligence operatives and
the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
[Emphasis supplied]


On the same day the petition was filed, the CA immediately
issued the Writ of Amparo, set the case for hearing on January 7,
2008, and directed the petitioners to file their verified return within
seventy-two (72) hours from service of the writ.
[11]


In their verified Return filed during the hearing of January 27, 2008,
the petitioners denied any involvement in or knowledge of Tagitis
alleged abduction. They argued that the allegations of the petition
were incomplete and did not constitute a cause of action against
them; were baseless, or at best speculative; and were merely based
on hearsay evidence.
[12]


The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the
Return, stated that: he did not have any personal knowledge of, or
any participation in, the alleged disappearance; that he had been
designated by President Gloria Macapagal Arroyo as the head of a
special body called TASK FORCE USIG, to address concerns about
extralegal killings and enforced disappearances; the Task
Force, inter alia, coordinated with the investigators and local police,
held case conferences, rendered legal advice in connection to these
cases; and gave the following summary:
[13]


x x x
x

4.
a) On November 5, 2007, the Regional Director, Police
Regional Office ARMM submitted a report on the alleged
disappearance of one Engr. Morced Tagitis. According to the said
report, the victim checked-in at ASY Pension House on October 30,
2007 at about 6:00 in the morning and then roamed around Jolo,
Sulu with an unidentified companion. It was only after a few days
when the said victim did not return that the matter was reported to
Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of the said missing
person, but to no avail. The said PPO is still conducting
investigation that will lead to the immediate findings of the
whereabouts of the person.

b) Likewise, the Regional Chief, 9RCIDU submitted a
Progress Report to the Director, CIDG. The said report stated
among others that: subject person attended an Education
Development Seminar set on October 28, 2007 conducted at Ateneo
de Zamboanga, Zamboanga City together with a Prof. Matli. On
October 30, 2007, at around 5:00 oclock in the morning, Engr.
Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty
Cruise, he was then billeted at ASY Pension House. At about 6:15
oclock in the morning of the same date, he instructed his student to
purchase a fast craft ticket bound for Zamboanga City and will
depart from Jolo, Sulu on October 31, 2007. That on or about 10:00
oclock in the morning, Engr. Tagitis left the premises of ASY
Pension House as stated by the cashier of the said pension
house. Later in the afternoon, the student instructed to purchase the
9

ticket arrived at the pension house and waited for Engr. Tagitis, but
the latter did not return. On its part, the elements of 9RCIDU is now
conducting a continuous case build up and information gathering to
locate the whereabouts of Engr. Tagitis.

c) That the Director, CIDG directed the conduct of the
search in all divisions of the CIDG to find Engr. Tagitis who was
allegedly abducted or illegally detained by covert CIDG-PNP
Intelligence Operatives since October 30, 2007, but after diligent
and thorough search, records show that no such person is being
detained in CIDG or any of its department or divisions.

5. On this particular case, the Philippine National Police
exhausted all possible efforts, steps and actions available under the
circumstances and continuously search and investigate [sic] the
instant case. This immense mandate, however, necessitates the
indispensable role of the citizenry, as the PNP cannot stand alone
without the cooperation of the victims and witnesses to identify the
perpetrators to bring them before the bar of justice and secure their
conviction in court.




The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal,
submitted as well his affidavit, also attached to the Return of the
Writ, attesting that upon receipt of the Writ of Amparo, he caused
the following:
[14]


x x x
x
That immediately upon receipt on December 29, 2007 of
the Resolution of the Honorable Special Fourth Division of the Court
of Appeals, I immediately directed the Investigation Division of this
Group [CIDG] to conduct urgent investigation on the alleged
enforced disappearance of Engineer Morced Tagitis.

That based on record, Engr. Morced N. Tagitis attended an
Education Development Seminar on October 28, 2007 at Ateneo de
Zamboanga at Zamboanga City together with Prof. Abdulnasser
Matli. On October 30, 2007, at around six oclock in the morning he
arrived at Jolo, Sulu. He was assisted by his student identified as
Arsimin Kunnong of the Islamic Development Bank who was also
one of the participants of the said seminar. He checked in at ASY
pension house located [sic] Kakuyagan, Patikul, Sulu on October 30,
2007 with [sic] unidentified companion. At around six oclock in the
morning of even date, Engr. Tagitis instructed his student to
purchase a fast craft ticket for Zamboanga City. In the afternoon of
the same date, Kunnong arrived at the pension house carrying the
ticket he purchased for Engr. Tagitis, but the latter was nowhere to
be found anymore. Kunnong immediately informed Prof.
Abdulnasser Matli who reported the incident to the police. The
CIDG is not involved in the disappearance of Engr. Morced Tagitis
to make out a case of an enforced disappearance which
presupposes a direct or indirect involvement of the government.

That herein [petitioner] searched all divisions and
departments for a person named Engr. Morced N. Tagitis, who was
allegedly abducted or illegally detained by covert CIDG-PNP
Intelligence Operatives since October 30, 2007 and after a diligent
and thorough research records show that no such person is being
detained in CIDG or any of its department or divisions.

That nevertheless, in order to determine the circumstances
surrounding Engr. Morced Tagitis [sic] alleged enforced
disappearance, the undersigned had undertaken immediate
investigation and will pursue investigations up to its full completion in
order to aid in the prosecution of the person or persons responsible
therefore.

Likewise attached to the Return of the Writ was PNP-
PACER
[15]
Chief PS Supt. Leonardo A. Espinas affidavit which
alleged that:
[16]


x x x
x

That, I and our men and women in PACER vehemently deny
any participation in the alleged abduction or illegally [sic] detention
of ENGR. MORCED N. TAGITS on October 30, 2007. As a matter
of fact, nowhere in the writ was mentioned that
the alleged abduction was perpetrated by elements of PACER nor
was there any indication that the alleged abduction or illegal
detention of ENGR. TAGITIS was undertaken jointly by our men and
by the alleged covert CIDG-PNP intelligence operatives alleged to
have abducted or illegally detained ENGR. TAGITIS.

That I was shocked when I learned that I was implicated in
the alleged disappearance of ENGR. MORCED in my capacity as
the chief PACER [sic] considering that our office, the Police Anti-
Crime and Emergency Response (PACER), a special task force
created for the purpose of neutralizing or eradicating kidnap-for-
ransom groups which until now continue to be one of the menace of
our society is a respondent in kidnapping or illegal detention
case. Simply put, our task is to go after kidnappers and charge
them in court and to abduct or illegally detain or kidnap anyone is
anathema to our mission.

That right after I learned of the receipt of the WRIT OF
AMPARO, I directed the Chief of PACER Mindanao Oriental
(PACER-MOR) to conduct pro-active measures to investigate,
locate/search the subject, identify and apprehend the persons
responsible, to recover and preserve evidence related to the
disappearance of ENGR. MORCED TAGITIS, which may aid in the
prosecution of the person or persons responsible, to identify
witnesses and obtain statements from them concerning the
disappearance and to determine the cause, manner, location and
time of disappearance as well as any pattern or practice that may
have brought about the disappearance.

That I further directed the chief of PACER-MOR, Police
Superintendent JOSE ARNALDO BRIONES JR., to submit a written
report regarding the disappearance of ENGR. MORCED.

That in compliance with my directive, the chief of PACER-
MOR sent through fax his written report.

That the investigation and measures being undertaken to
locate/search the subject in coordination with Police Regional Office,
Autonomous Region of Muslim Mindanao (PRO-ARMM) and Jolo
Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the instruction not to
leave any stone unturned so to speak in the investigation until the
perpetrators in the instant case are brought to the bar of justice.

That I have exercised EXTRAORDINARY DILIGENCE in
dealing with the WRIT OF AMPARO just issued.


Finally, the PNP PRO ARMM Regional Director PC Supt.
Joel R. Goltiao (Gen. Goltiao), also submitted his affidavit detailing
the actions that he had taken upon receipt of the report on Tagitis
disappearance, viz:
[17]


x x x
x

3) For the record:
10


1. I am the Regional Director of Police Regional Office
ARMM now and during the time of the incident;

x x x x

4. It is my duty to look into and take appropriate measures on
any cases of reported enforced disappearances and when they are
being alluded to my office;

5. On November 5, 2007, the Provincial Director of Sulu
Police Provincial Office reported to me through Radio Message Cite
No. SPNP3-1105-07-2007 that on November 4, 2007 at around 3:30
p.m., a certain Abdulnasser Matli, an employee of Islamic
Development Bank, appeared before the Office of the Chief of
Police, Jolo Police Station, and reported the disappearance of Engr.
Morced Tagitis, scholarship coordinator of Islamic Development
Bank, Manila;

6. There was no report that Engr. Tagibis was last seen
in the company of or taken by any member of the Philippine National
Police but rather he just disappeared from ASY Pension House
situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30,
2007, without any trace of forcible abduction or arrest;

7. The last known instance of communication with him
was when Arsimin Kunnong, a student scholar, was requested by
him to purchase a vessel ticket at the Office of Weezam Express,
however, when the student returned back to ASY Pension House,
he no longer found Engr. Tagitis there and when he immediately
inquired at the information counter regarding his whereabouts [sic],
the person in charge in the counter informed him that Engr. Tagitis
had left the premises on October 30, 2007 around 1 oclock p.m.
and never returned back to his room;

8. Immediately after learning the incident, I called and
directed the Provincial Director of Sulu Police Provincial Office and
other units through phone call and text messages to conduct
investigation [sic] to determine the whereabouts of the aggrieved
party and the person or persons responsible for the threat, act or
omission, to recover and preserve evidence related to the
disappearance of Engr. Tagitis, to identify witnesses and obtain
statements from them concerning his disappearance, to determine
the cause and manner of his disappearance, to identify and
apprehend the person or persons involved in the disappearance so
that they shall be brought before a competent court;

9. Thereafter, through my Chief of the Regional
Investigation and Detection Management Division, I have caused
the following directives:

a) Radio Message Cite No. RIDMD-1122-07-358 dated
November 22, 2007 directing PD Sulu PPO to conduct joint
investigation with CIDG and CIDU ARMM on the matter;

b) Radio Message Cite No. RIDMD-1128-07-361 dated November
28, 2007 directing PD Sulu PPO to expedite compliance to my
previous directive;

c) Memorandum dated December 14, 2007 addressed to PD
Sulu PPO reiterating our series of directives for investigation and
directing him to undertake exhaustive coordination efforts with the
owner of ASY Pension House and student scholars of IDB in order
to secure corroborative statements regarding the disappearance and
whereabouts of said personality;

d) Memorandum dated December 24, 2007 addressed to PD Sulu
PPO directing him to maximize efforts to establish clues on the
whereabouts of Engr. Tagitis by seeking the cooperation of Prof.
Abdulnasser Matli and Arsimin Kunnong and/or whenever
necessary, for them to voluntarily submit for polygraph examination
with the NBI so as to expunge all clouds of doubt that they may
somehow have knowledge or idea to his disappearance;

e) Memorandum dated December 27, 2007 addressed to the
Regional Chief, Criminal Investigation and Detection Group, Police
Regional Office 9, Zamboanga City, requesting assistance to
investigate the cause and unknown disappearance of Engr. Tagitis
considering that it is within their area of operational jurisdiction;

f) Memorandum from Chief, Intelligence Division, PRO ARMM
dated December 30, 2007 addressed to PD Sulu PPO requiring
them to submit complete investigation report regarding the case of
Engr. Tagitis;

10. In compliance to our directives, PD Sulu PPO has
exerted his [sic] efforts to conduct investigation [sic] on the matter to
determine the whereabouts of Engr. Tagitis and the circumstances
related to his disappearance and submitted the following:

a) Progress Report dated November 6, 2007 through Radio
Message Cite No. SPNP3-1106-10-2007;

b) Radio Message Cite No. SPIDMS-1205-47-07 informing this
office that they are still monitoring the whereabouts of Engr. Tagitis;

c) Investigation Report dated December 31, 2007 from the Chief
of Police, Jolo Police Station, Sulu PPO;

11. This incident was properly reported to the PNP
Higher Headquarters as shown in the following:

a) Memorandum dated November 6, 2007 addressed to the
Chief, PNP informing him of the facts of the disappearance and the
action being taken by our office;

b) Memorandum dated November 6, 2007 addressed to the
Director, Directorate for Investigation and Detection Management,
NHQ PNP;

c) Memorandum dated December 30, 2007 addressed to the
Director, DIDM;

4) In spite of our exhaustive efforts, the whereabouts of
Engr. Tagitis cannot be determined but our office is continuously
intensifying the conduct of information gathering, monitoring and
coordination for the immediate solution of the case.


Since the disappearance of Tagistis was practically admitted
and taking note of favorable actions so far taken on the
disappearance, the CA directed Gen. Goltiao as the officer in
command of the area of disappearance to form TASK FORCE
TAGITIS.
[18]


Task Force Tagitis

On January 11, 2008, Gen. Goltiao designated PS Supt.
Ahiron Ajirim (PS Supt. Ajirim) to head TASK FORCE
TAGITIS.
[19]
The CA subsequently set three hearings to monitor
whether TASK FORCE TAGITIS was exerting extraordinary efforts
in handling the disappearance of Tagitis.
[20]
As planned, (1) the first
hearing would be to mobilize the CIDG, Zamboanga City; (2) the
second hearing would be to mobilize intelligence with Abu Sayyaf
and ARMM; and (3) the third hearing would be to mobilize the Chief
of Police of Jolo, Sulu and the Chief of Police of Zamboanga City
and other police operatives.
[21]


11

In the hearing on January 17, 2008, TASK FORCE TAGITIS
submitted to the CA an intelligence report from PSL Usman S.
Pingay, the Chief of Police of the Jolo Police Station, stating a
possible motive for Tagitis disappearance.
[22]
The intelligence
report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of
Islamic Studies at the University of the Philippines and an Honorary
Student Counselor of the IDB Scholarship Program in the
Philippines, who told the Provincial Governor of Sulu that:
[23]


[Based] on reliable information from the Office of Muslim Affairs in
Manila, Tagitis has reportedly taken and carried away more or
less Five Million Pesos (P5,000,000.00) deposited and entrusted to
his [personal] bank accounts by the Central Office of IDB,
Jeddah, Kingdom of Saudi Arabia, which [was] intended for the
IDB Scholarship Fund.

In the same hearing, PS Supt. Ajirim testified that since the
CIDG was alleged to be responsible, he personally went to the
CIDG office in Zamboanga City to conduct an ocular
inspection/investigation, particularly of their detention cells.
[24]
PS
Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently
denied any knowledge or complicity in any abduction.
[25]
He further
testified that prior to the hearing, he had already mobilized and given
specific instructions to their supporting units to perform their
respective tasks; that they even talked to, but failed to get any lead
from the respondent in Jolo.
[26]
In his submitted investigation report
dated January 16, 2008, PS Supt. Ajirim concluded:
[27]


9. Gleaned from the undersigned inspection and
observation at the Headquarters 9 RCIDU and the documents at
hand, it is my own initial conclusion that the 9RCIDU and other PNP
units in the area had no participation neither [sic] something to do
with [sic] mysterious disappearance of Engr. Morced Tagitis last
October 30, 2007. Since doubt has been raised regarding the
emolument on the Islamic Development Bank Scholar program of
IDB that was reportedly deposited in the personal account of Engr.
Tagitis by the IDB central office in Jeddah, Kingdom of Saudi
Arabia. Secondly, it could might [sic] be done by resentment or sour
grape among students who are applying for the scholar [sic] and
were denied which was allegedly conducted/screened by the subject
being the coordinator of said program.

20. It is also premature to conclude but it does or it may
and [sic] presumed that the motive behind the disappearance of the
subject might be due to the funds he maliciously spent for his
personal interest and wanted to elude responsibilities from the
institution where he belong as well as to the Islamic student scholars
should the statement of Prof. Matli be true or there might be a
professional jealousy among them.

x x x
x

It is recommended that the Writ of Amparo filed against the
respondents be dropped and dismissed considering on [sic] the
police and military actions in the area particularly the CIDG are
exerting their efforts and religiously doing their tasked [sic] in the
conduct of its intelligence monitoring and investigation for the early
resolution of this instant case. But rest assured, our office, in
coordination with other law-enforcement agencies in the area, are
continuously and religiously conducting our investigation for the
resolution of this case.

On February 4, 2008, the CA issued an ALARM WARNING
that TASK FORCE TAGITIS did not appear to be exerting
extraordinary efforts in resolving Tagitis disappearance on the
following grounds:
[28]


(1) This Court FOUND that it was only as late as January
28, 2008, after the hearing, that GEN. JOEL GOLTIAO and COL.
AHIRON AJIRIM had requested for clear photographs when it
should have been standard operating procedure in kidnappings or
disappearances that the first agenda was for the police to
secure clear pictures of the missing person, Engr. Morced Tagitis,
for dissemination to all parts of the country and to neighboring
countries. It had been three (3) months since GEN. JOEL GOLTIAO
admitted having been informed on November 5, 2007 of the alleged
abduction of Engr. Morced Tagitis by alleged bad elements of the
CIDG. It had been more than one (1) month since the Writ of
Amparo had been issued on December 28, 2007. It had been three
(3) weeks when battle formation was ordered through Task Force
Tagitis, on January 17, 2008. It was only on January 28, 2008 when
the Task Force Tagitis requested for clear and recent photographs
of the missing person, Engr. Morced Tagitis, despite the Task Force
Tagitis claim that they already had an all points bulletin, since
November 5, 2007, on the missing person, Engr. Morced
Tagitis. How could the police look for someone who disappeared if
no clear photograph had been disseminated?

(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM
informed this Court that P/Supt KASIM was designated as Col.
Ahirom Ajirims replacement in the latters official designated
post. Yet, P/Supt KASIMs subpoena was returned to this Court
unserved. Since this Court was made to understand that it was
P/Supt KASIM who was the petitioners unofficial source of the
military intelligence information that Engr. Morced Tagitis was
abducted by bad elements of the CIDG (par. 15 of the Petition), the
close contact between P/Supt KASIM and Col. Ahirom Ajirim of
TASK FORCE TAGITIS should have ensured the appearance of
Col. KASIM in response to this courts subpoena and COL. KASIM
could have confirmed the military intelligence information that bad
elements of the CIDG had abducted Engr. Morced Tagitis.



Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis,
testified on direct examination that she went to Jolo and Zamboanga
in her efforts to locate her husband. She said that a friend from
Zamboanga holding a high position in the military (whom she did not
then identify) gave her information that allowed her to specify her
allegations, particularly paragraph 15 of the petition.
[29]
This friend
also told her that her husband [was] in good hands.
[30]
The
respondent also testified that she sought the assistance of her
former boss in Davao City, Land Bank Bajada Branch Manager
Rudy Salvador, who told her that PNP CIDG is holding [her
husband], Engineer Morced Tagitis.
[31]
The respondent recounted
that she went to Camp Katitipan in Davao City where she met Col.
Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her
and her friends (who were then with her) a highly confidential
report that contained the alleged activities of Engineer Tagitis and
informed her that her husband was abducted because he is under
custodial investigation for being a liaison for J.I. or Jemaah
Islamiah.
[32]


On January 17, 2008, the respondent on cross-examination
testified that she is Tagitis second wife, and they have been married
for thirteen years; Tagitis was divorced from his first wife.
[33]
She
last communicated with her husband on October 29, 2007 at around
7:31 p.m. through text messaging; Tagitis was then on his way to
Jolo, Sulu, from Zamboanga City.
[34]


The respondent narrated that she learned of her husbands
disappearance on October 30, 2007 when her stepdaughter, Zaynah
Tagitis (Zaynah), informed her that she had not heard from her
12

father since the time they arranged to meet in Manila on October 31,
2007.
[35]
The respondent explained that it took her a few days (or on
November 5, 2007) to personally ask Kunnong to report her
husbands disappearance to the Jolo Police Station, since she had
the impression that her husband could not communicate with her
because his cellular phones battery did not have enough power,
and that he would call her when he had fully-charged his cellular
phones battery.
[36]


The respondent also identified the high-ranking military friend,
who gave her the information found in paragraph 15 of her petition,
as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in
Camp Karingal, Zamboanga through her boss.
[37]
She also testified
that she was with three other people, namely, Mrs. Marydel Martin
Talbin and her two friends from Mati City, Davao Oriental, when Col.
Kasim read to them the contents of the highly confidential report at
Camp Katitipan, Davao City. The respondent further narrated that
the report indicated that her husband met with people belonging to a
terrorist group and that he was under custodial investigation. She
then told Col. Kasim that her husband was a diabetic taking
maintenance medication, and asked that the Colonel relay to the
persons holding him the need to give him his medication.
[38]


On February 11, 2008, TASK FORCE TAGITIS submitted two
narrative reports,
[39]
signed by the respondent, detailing her efforts to
locate her husband which led to her meetings with Col. Ancanan of
the Philippine Army and Col. Kasim of the PNP. In her narrative
report concerning her meeting with Col. Ancanan, the respondent
recounted, viz:
[40]


On November 11, 2007, we went to Zamboanga City with my
friend Mrs. Marydel Talbin. Our flight from Davao City is 9:00
oclock in the morning; we arrived at Zamboanga Airport at around
10:00 oclock. We [were] fetched by the two staffs of Col. Ancanan.
We immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).

On that same day, we had private conversation with Col.
Ancanan. He interviewed me and got information about the personal
background of Engr. Morced N. Tagitis. After he gathered all
information, he revealed to us the contents of text messages they
got from the cellular phone of the subject Engr. Tagitis. One of the
very important text messages of Engr. Tagitis sent to his daughter
Zaynah Tagitis was that she was not allowed to answer any
telephone calls in his condominium unit.

While we were there he did not tell us any information of the
whereabouts of Engr. Tagitis. After the said meeting with Col.
Ancanan, he treated us as guests to the city. His two staffs
accompanied us to the mall to purchase our plane ticket going back
to Davao City on November 12, 2007.

When we arrived in Davao City on November 12, 2007 at
9:00 in the morning, Col. Ancanan and I were discussing some
points through phone calls. He assured me that my husband is alive
and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not
believe his given statements of the whereabouts of my husband,
because I contacted some of my friends who have access to the
groups of MILF, MNLF and ASG. I called up Col. Ancanan several
times begging to tell me the exact location of my husband and who
held him but he refused.

While I was in Jolo, Sulu on November 30, 2007, I called him
up again because the PNP, Jolo did not give me any information of
the whereabouts of my husband. Col. Ancanan told me that Sana
ngayon alam mo na kung saan ang kinalalagyan ng asawa
mo. When I was in Zamboanga, I was thinking of dropping by the
office of Col. Ancanan, but I was hesitant to pay him a visit for the
reason that the Chief of Police of Jolo told me not to contact any
AFP officials and he promised me that he can solve the case of my
husband (Engr. Tagitis) within nine days.

I appreciate the effort of Col. Ancanan on trying to solve the
case of my husband Engr. Morced Tagitis, yet failed to do so.


The respondent also narrated her encounter with Col. Kasim,
as follows:
[41]

On November 7, 2007, I went to Land Bank of the Philippines,
Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told him
that my husband, Engineer Morced Tagitis was presumed to be
abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to
contact his connections in the military in Jolo, Sulu where the
abduction of Engr. Tagitis took place. Mr. Salvador immediately
called up Camp Katitipan located in Davao City looking for high-
ranking official who can help me gather reliable information behind
the abduction of subject Engineer Tagitis.

On that same day, Mr. Salvador and my friend, Anna
Mendoza, Executive Secretary, accompanied me to Camp Katitipan
to meet Col. Kasim. Mr. Salvador introduced me to Col. Kasim and
we had a short conversation. And he assured me that hell do the
best he can to help me find my husband.

After a few weeks, Mr. Salvador called me up informing me
up informing me that I am to go to Camp Katitipan to meet Col.
Kasim for he has an urgent, confidential information to reveal.

On November 24, 2007, we went back to Camp Katitipan
with my three friends. That was the time that Col. Kasim read to us
the confidential report that Engr. Tagitis was allegedly connected
[with] different terrorist [groups], one of which he mentioned in the
report was OMAR PATIK and a certain SANTOS - a Balik Islam.

It is also said that Engr. Tagitis is carrying boxes of
medicines for the injured terrorists as a supplier. These are the two
information that I can still remember. It was written in a long bond
paper with PNP Letterhead. It was not shown to us, yet Col. Kasim
was the one who read it for us.

He asked a favor to me that Please dont quote my Name!
Because this is a raw report. He assured me that my husband is
alive and he is in the custody of the military for custodial
investigation. I told him to please take care of my husband because
he has aliments and he recently took insulin for he is a diabetic
patient.

In my petition for writ of amparo, I emphasized the
information that I got from Kasim.

On February 11, 2008, the respondent presented Mrs. Marydel
Martin Talbin (Mrs. Talbin) to corroborate her testimony regarding
her efforts to locate her husband, in relation particularly with the
information she received from Col. Kasim. Mrs. Talbin testified that
she was with the respondent when she went to Zamboanga to see
Col. Ancanan, and to Davao City at Camp Katitipan to meet Col.
Kasim.
[42]


In Zamboanga, Mrs. Talbin recounted that they met with Col.
Ancanan, who told them that there was a report and that he showed
them a series of text messages from Tagitis cellular phone, which
showed that Tagitis and his daughter would meet in Manila on
October 30, 2007.
[43]


She further narrated that sometime on November 24, 2007,
she went with the respondent together with two other companions,
namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to
talk to Col. Kasim.
[44]
The respondent asked Col. Kasim if he knew
13

the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis
was in good hands, although he was not certain whether he was
with the PNP or with the Armed Forces of the Philippines
(AFP). She further recounted that based on the report Col. Kasim
read in their presence, Tagitis was under custodial investigation
because he was being charged with terrorism; Tagitis in fact had
been under surveillance since January 2007 up to the time he was
abducted when he was seen talking to Omar Patik and a certain
Santos of Bulacan, a Balik Islam charged with terrorism. Col.
Kasim also told them that he could not give a copy of the report
because it was a raw report.
[45]
She also related that the Col.
Kasim did not tell them exactly where Tagitis was being kept,
although he mentioned Talipapao, Sulu.
Prof.,lalabas din yan.[50]
Prof. Matli
also emphasized that despite what his January 4, 2008 affidavit
indicated,
[51]
he never told PS Supt. Pingay, or made any
accusation, that Tagitis took away money entrusted to him.
[52]
Prof.
Matli confirmed, however, that that he had received an e-mail
report
[53]
from Nuraya Lackian of the Office of Muslim Affairs in
Manila that the IDB was seeking assistance of the office in locating
the funds of IDB scholars deposited in Tagitis personal account.
[54]


On cross-examination by the respondents counsel, Prof. Matli
testified that his January 4, 2008 affidavit was already prepared
when PS Supt. Pingay asked him to sign it.
[55]
Prof Matli clarified
that although he read the affidavit before signing it, he was not so
much aware of [its] contents.
[56]


On February 11, 2008, the petitioners presented Col. Kasim to
rebut material portions of the respondents testimony, particularly the
allegation that he had stated that Tagitis was in the custody of either
the military or the PNP.
[57]
Col. Kasim categorically denied the
statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines as
supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent
that your husband is in good hands and is probably taken
cared of by his armed abductors; and (3) that Tagitis was under
custodial investigation by the military, the PNP or the CIDG
Zamboanga City.
[58]
Col. Kasim emphasized that the informal
letter he received from his informant in Sulu did not indicate that
Tagitis was in the custody of the CIDG.
[59]
He also stressed that the
information he provided to the respondent was merely a raw report
sourced from barangay intelligence that still needed confirmation
and follow-up as to its veracity.
[60]


On cross-examination, Col. Kasim testified that the information
he gave the respondent was given to him by his informant, who was
a civilian asset, through a letter which he considered as
unofficial.
[61]
Col. Kasim stressed that the letter was only meant for
his consumption and not for reading by others.
[62]
He testified
further that he destroyed the letter right after he read it to the
respondent and her companions because it was not important to
him and also because the information it contained had no
importance in relation with the abduction of Tagitis.
[63]
He explained
that he did not keep the letter because it did not contain any
information regarding the whereabouts of Tagitis and the person(s)
responsible for his abduction.
[64]


In the same hearing on February 11, 2008, the petitioners also
presented Police Senior Superintendent Jose Volpane Pante (Col.
Pante), Chief of the CIDG-9, to disprove the respondents allegation
that Tagitis was in the custody of CIDG-Zamboanga City.
[65]
Col.
Pante clarified that the CIDG was the investigative arm of the PNP,
and that the CIDG investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered
as heinous crimes.
[66]
Col. Pante further testified that the allegation
that 9 RCIDU personnel were involved in the disappearance of
Tagitis was baseless, since they did not conduct any operation in
Jolo, Sulu before or after Tagitis reported disappearance.
[67]
Col.
Pante added that the four (4) personnel assigned to the Sulu CIDT
had no capability to conduct any operation, since they were only
assigned to investigate matters and to monitor the terrorism
situation.
[68]
He denied that his office conducted any surveillance on
Tagitis prior to the latters disappearance.
[69]
Col. Pante further
testified that his investigation of Tagitis disappearance was
unsuccessful; the investigation was still facing a blank wall on the
whereabouts of Tagitis.
[70]


THE CA RULING

On March 7, 2008, the CA issued its decision
[71]
confirming
that the disappearance of Tagitis was an enforced disappearance
under the United Nations (UN) Declaration on the Protection of All
Persons from Enforced Disappearances.
[72]
The CA ruled that when
military intelligence pinpointed the investigative arm of the PNP
(CIDG) to be involved in the abduction, the missing-person case
qualified as an enforced disappearance. The conclusion that the
CIDG was involved was based on the respondents testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the
information that the CIDG, as the police intelligence arm, was
involved in Tagitis abduction came from no less than the military
an independent agency of government. The CA thus greatly relied
on the raw report from Col. Kasims asset, pointing to the CIDGs
involvement in Tagitis abduction. The CA held that raw reports
from an asset carried great weight in the intelligence world. It
also labeled as suspect Col. Kasims subsequent and belated
retraction of his statement that the military, the police, or the CIDG
was involved in the abduction of Tagitis.

The CA characterized as too farfetched and unbelievable and
a bedlam of speculation police theories painting the disappearance
as intentional on the part of Tagitis. He had no previous brushes
with the law or any record of overstepping the bounds of any trust
regarding money entrusted to him; no student of the IDB scholarship
program ever came forward to complain that he or she did not get
his or her stipend. The CA also found no basis for the police theory
that Tagitis was trying to escape from the clutches of his second
wife, on the basis of the respondents testimony that Tagitis was a
Muslim who could have many wives under the Muslim faith, and that
there was no issue at all when the latter divorced his first wife in
order to marry the second. Finally, the CA also ruled out kidnapping
for ransom by the Abu Sayyaf or by the ARMM paramilitary as the
cause for Tagitis disappearance, since the respondent, the police
and the military noted that there was no acknowledgement of
Tagitis abduction or demand for payment of ransom the
usual modus operandi of these terrorist groups.

Based on these considerations, the CA thus extended the
privilege of the writ to Tagitis and his family, and directed the CIDG
Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, TASK
FORCE TAGITIS heads Gen. Joel Goltiao and Col. Ahiron Ajirim,
and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and
security of Tagitis, with the obligation to provide monthly reports of
their actions to the CA. At the same time, the CA dismissed the
petition against the then respondents from the military, Lt. Gen
Alexander Yano and Gen. Ruben Rafael, based on the finding that it
was PNP-CIDG, not the military, that was involved.

On March 31, 2008, the petitioners moved to reconsider the
CA decision, but the CA denied the motion in its Resolution of April
9, 2008.
[73]


THE PETITION

In this Rule 45 appeal questioning the CAs March 7, 2008
decision, the petitioners mainly dispute the sufficiency in form and
substance of the Amparo petition filed before the CA; the sufficiency
14

of the legal remedies the respondent took before petitioning for the
writ; the finding that the rights to life, liberty and security of Tagitis
had been violated; the sufficiency of evidence supporting the
conclusion that Tagitis was abducted; the conclusion that the CIDG
Zamboanga was responsible for the abduction; and, generally, the
ruling that the respondent discharged the burden of proving the
allegations of the petition by substantial evidence.
[74]


THE COURTS RULING

We do not find the petition meritorious.

Sufficiency in Form and Substance

In questioning the sufficiency in form and substance of the
respondents Amparo petition, the petitioners contend that the
petition violated Section 5(c), (d), and (e) of
the Amparo Rule. Specifically, the petitioners allege that the
respondent failed to:

1) allege any act or omission the petitioners committed in violation
of Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the
persons responsible for his disappearance, and the respondents
source of information;
3) allege that the abduction was committed at the petitioners
instructions or with their consent;
4) implead the members of CIDG regional office in Zamboanga
alleged to have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis
disappearance; and
7) specify what legally available efforts she took to determine the
fate or whereabouts of her husband.

A petition for the Writ of Amparo shall be signed and verified and
shall allege, among others (in terms of the portions the petitioners
cite):
[75]


(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in
supporting affidavits;

(d) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of
the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved party and
the identity of the person responsible for the threat, act or
omission; and


The framers of the Amparo Rule never intended Section 5(c) to be
complete in every detail in stating the threatened or actual violation
of a victims rights. As in any other initiatory pleading, the pleader
must of course state the ultimate facts constituting the cause of
action, omitting the evidentiary details.
[76]
In an Amparo petition,
however, this requirement must be read in light of the nature and
purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty
how the victim exactly disappeared, or who actually acted to kidnap,
abduct or arrest him or her, or where the victim is detained, because
these information may purposely be hidden or covered up by those
who caused the disappearance. In this type of situation, to require
the level of specificity, detail and precision that the petitioners
apparently want to read into the Amparo Rule is to make this Rule
a token gesture of judicial concern for violations of the constitutional
rights to life, liberty and security.

To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading the
petition should be to determine whether it contains the
details available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victims rights
to life, liberty and security through State or private party action. The
petition should likewise be read in its totality, rather than in terms of
its isolated component parts, to determine if the required elements
namely, of the disappearance, the State or private action, and the
actual or threatened violations of the rights to life, liberty or security
are present.

In the present case, the petition amply recites in its paragraphs 4 to
11 the circumstances under which Tagitis suddenly dropped out of
sight after engaging in normal activities, and thereafter was nowhere
to be found despite efforts to locate him. The petition alleged,
too,under its paragraph 7, in relation to paragraphs 15 and 16, that
according to reliable information, police operatives were the
perpetrators of the abduction. It also clearly alleged how Tagitis
rights to life, liberty and security were violated when he was forcibly
taken and boarded on a motor vehicle by a couple of burly men
believed to be police intelligence operatives, and then taken into
custody by the respondents police intelligence operatives since
October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x
x x held against his will in an earnest attempt of the police to involve
and connect [him] with different terrorist groups.
[77]


These allegations, in our view, properly pleaded ultimate facts within
the pleaders knowledge about Tagitis disappearance, the
participation by agents of the State in this disappearance, the failure
of the State to release Tagitis or to provide sufficient information
about his whereabouts, as well as the actual violation of his right to
liberty. Thus, the petition cannot be faulted for any failure in its
statement of a cause of action.

If a defect can at all be attributed to the petition, this defect is its lack
of supporting affidavit, as required by Section 5(c) of
the Amparo Rule. Owing to the summary nature of the proceedings
for the writ and to facilitate the resolution of the petition,
the Amparo Rule incorporated the requirement for supporting
affidavits, with the annotation that these can be used as the affiants
direct testimony.
[78]
This requirement, however, should not be read
as an absolute one that necessarily leads to the dismissal of the
petition if not strictly followed. Where, as in this case, the petitioner
has substantially complied with the requirement by submitting
a verified petition sufficiently detailing the facts relied upon, the strict
need for the sworn statement that an affidavit represents is
essentially fulfilled. We note that the failure to attach the required
affidavits was fully cured when the respondent and her witness (Mrs.
Talbin) personally testified in the CA hearings held on January 7 and
17 and February 18, 2008 to swear to and flesh out the allegations
of the petition. Thus, even on this point, the petition cannot be
faulted.

Section 5(d) of the Amparo Rule requires that prior investigation of
an alleged disappearance must have been made, specifying the
manner and results of the investigation. Effectively, this requirement
seeks to establish at the earliest opportunity the level of diligence
the public authorities undertook in relation with the reported
disappearance.
[79]

We reject the petitioners argument that the respondents petition did
not comply with the Section 5(d) requirements of the Amparo Rule,
as the petition specifies in its paragraph 11 that Kunnong and his
companions immediately reported Tagitis disappearance to the
15

police authorities in Jolo, Sulu as soon as they were relatively
certain that he indeed had disappeared. The police, however, gave
them the ready answer that Tagitis could have been abducted by
the Abu Sayyaf group or other anti-government groups. The
respondent also alleged in paragraphs 17 and 18 of her petition that
she filed a complaint with the PNP Police Station in Cotobato and
in Jolo, but she was told of an intriguing tale by the police that her
husband was having a good time with another woman. The
disappearance was alleged to have been reported, too, to no less
than the Governor of the ARMM, followed by the respondents
personal inquiries that yielded the factual bases for her petition.
[80]


These allegations, to our mind, sufficiently specify that reports have
been made to the police authorities, and that investigations should
have followed. That the petition did not state the manner and results
of the investigation that the Amparo Rule requires, but rather
generally stated the inaction of the police, their failure to perform
their duty to investigate, or at the very least, their reported failed
efforts, should not be a reflection on the completeness of the
petition. To require the respondent to elaborately specify the names,
personal circumstances, and addresses of the investigating
authority, as well the manner and conduct of the investigation is an
overly strict interpretation of Section 5(d), given the respondents
frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the
allegations of the petition on the investigations undertaken are
sufficiently complete for purposes of bringing the petition forward.

Section 5(e) is in the Amparo Rule to prevent the use of a petition
that otherwise is not supported by sufficient allegations to constitute
a proper cause of action as a means to fish for evidence.
[81]
The
petitioners contend that the respondents petition did not specify
what legally available efforts were taken by the respondent, and
that there was an undue haste in the filing of the petition when,
instead of cooperating with authorities, the respondent immediately
invoked the Courts intervention.

We do not see the respondents petition as the petitioners view it.

Section 5(e) merely requires that the Amparo petitioner (the
respondent in the present case) allege the actions and recourses
taken to determine the fate or whereabouts of the aggrieved party
and the identity of the person responsible for the threat, act or
omission. The following allegations of the respondents petition duly
outlined the actions she had taken and the frustrations she
encountered, thus compelling her to file her petition.

x x x
x

7. Soon after the student left the room, Engr. Tagitis went
out of the pension house to take his early lunch but while out on the
street, a couple of burly men believed to be police intelligence
operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away without the knowledge of his student,
Arsimin Kunnong;

x x x x

10. When Kunnong could not locate Engr. Tagitis, the
former sought the help of another IDB scholar and reported the
matter to the local police agency;

11. Arsimin Kunnong, including his friends and
companions in Jolo, exerted efforts in trying to locate the
whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could [have been] abducted by the Abu Sayyaf
group and other groups known to be fighting against the
government;

12. Being scared with these suggestions and
insinuations of the police officers, Kunnong reported the matter to
the [respondent](wife of Engr. Tagitis) by phone and other
responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines who alerted the office of the Governor
of ARMM who was then preparing to attend the OIC meeting in
Jeddah, Saudi Arabia;

13. [The respondent], on the other hand, approached some of
her co-employees with the Land Bank in Digos branch, Digos City,
Davao del Sur, who likewise sought help from some of their friends
in the military who could help them find/locate the whereabouts of
her husband;

x x x x
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP Zamboanga
City, being held against his will in an earnest attempt of the police to
involve and connect Engr. Tagitis with the different terrorist groups;

x x x x

17. [The respondent] filed her complaint with the PNP
Police Station at the ARMM in Cotobato and in Jolo, as suggested
by her friends, seeking their help to find her husband, but [the
respondents] request and pleadings failed to produce any positive
results

x x x
x
20. Lately, [respondent] was again advised by one of the
[petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters including
the police headquarters in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been
visited by the [respondent] in search for her husband, which entailed
expenses for her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from friends and
relatives only to try complying to the different suggestions of these
police officers, despite of which, her efforts produced no positive
results up to the present time;

x x x x

25. [The respondent] has exhausted all administrative avenues
and remedies but to no avail, and under the circumstances,
[respondent] has no other plain, speedy and adequate remedy to
protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of [the petitioners], their intelligence operatives and
the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.

Based on these considerations, we rule that the respondents
petition for the Writ of Amparo is sufficient in form and substance
and that the Court of Appeals had every reason to proceed with its
consideration of the case.



The Desaparecidos

The present case is one of first impression in the use and
application of the Rule on the Writ of Amparo in an enforced
disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a
16

brief look at the historical context of the writ and enforced
disappearances would be very helpful.

The phenomenon of enforced disappearance arising from State
action first attracted notice in Adolf Hitlers Nact und Nebel Erlass or
Night and Fog Decree of December 7, 1941.
[82]
The Third Reichs
Night and Fog Program, a State policy, was directed at persons in
occupied territories endangering German security; they were
transported secretly to Germany where they disappeared without a
trace. In order to maximize the desired intimidating effect, the policy
prohibited government officials from providing information about the
fate of these targeted persons.
[83]


In the mid-1970s, the phenomenon of enforced disappearances
resurfaced, shocking and outraging the world when individuals,
numbering anywhere from 6,000 to 24,000, were reported to have
disappeared during the military regime in Argentina. Enforced
disappearances spread in Latin America, and the issue became an
international concern when the world noted its widespread and
systematic use by State security forces in that continent under
Operation Condor
[84]
and during the Dirty War
[85]
in the 1970s and
1980s. The escalation of the practice saw political activists secretly
arrested, tortured, and killed as part of governments counter-
insurgency campaigns. As this form of political brutality became
routine elsewhere in the continent, the Latin American media
standardized the term disappearance to describe the
phenomenon. The victims of enforced disappearances were called
the desaparecidos,
[86]
which literally means the disappeared
ones.
[87]
In general, there are three different kinds of
disappearance cases:

1) those of people arrested without witnesses or without positive
identification of the arresting agents and are never found again;

2) those of prisoners who are usually arrested without an
appropriate warrant and held in complete isolation for weeks or
months while their families are unable to discover their whereabouts
and the military authorities deny having them in custody until they
eventually reappear in one detention center or another; and

3) those of victims of salvaging who have disappeared until
their lifeless bodies are later discovered.
[88]


In the Philippines, enforced disappearances generally fall within the
first two categories,
[89]
and 855 cases were recorded during the
period of martial law from 1972 until 1986. Of this number, 595
remained missing, 132 surfaced alive and 127 were found dead.
During former President Corazon C. Aquinos term, 820 people were
reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced
alive and 97 were found dead. The number of enforced
disappearances dropped during former President Fidel V. Ramos
term when only 87 cases were reported, while the three-year term of
former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization,
reports that as of March 31, 2008, the records show that there were
a total of 193 victims of enforced disappearance under incumbent
President Gloria M. Arroyos administration. The Commission on
Human Rights records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406
remained missing, 92 surfaced alive, 62 were found dead, and 76
still have undetermined status.
[90]
Currently, the United Nations
Working Group on Enforced or Involuntary Disappearance
[91]
reports
619 outstanding cases of enforced or involuntary disappearances
covering the period December 1, 2007 to November 30, 2008.
[92]


Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the writ shall cover
extralegal killings and enforced disappearances or threats
thereof.
[93]
We note that although the writ specifically covers
enforced disappearances, this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court
Committee on the Revision of Rules (Committee) reveal that the
drafters of the Amparo Rule initially considered providing an
elemental definition of the concept of enforced disappearance:
[94]


JUSTICE MARTINEZ: I believe that first and foremost we should
come up or formulate a specific definition [for] extrajudicial killings
and enforced disappearances. From that definition, then we can
proceed to formulate the rules, definite rules concerning the same.

CHIEF JUSTICE PUNO: As things stand, there is no law
penalizing extrajudicial killings and enforced disappearances
so initially also we have to [come up with] the nature of these
extrajudicial killings and enforced disappearances [to be
covered by the Rule] because our concept of killings and
disappearances will define the jurisdiction of the courts. So
well have to agree among ourselves about the nature of killings and
disappearances for instance, in other jurisdictions, the rules only
cover state actors. That is an element incorporated in their concept
of extrajudicial killings and enforced disappearances. In other
jurisdictions, the concept includes acts and omissions not only of
state actors but also of non state actors. Well, more specifically in
the case of the Philippines for instance, should these rules include
the killings, the disappearances which may be authored by let us
say, the NPAs or the leftist organizations and others. So, again we
need to define the nature of the extrajudicial killings and enforced
disappearances that will be covered by these rules. [Emphasis
supplied]
[95]


In the end, the Committee took cognizance of several bills filed in
the House of Representatives
[96]
and in the Senate
[97]
on
extrajudicial killings and enforced disappearances, and resolved to
do away with a clear textual definition of these terms in the
Rule. The Committee instead focused on the nature and scope of
the concerns within its power to address and provided the
appropriate remedy therefor, mindful that an elemental definition
may intrude into the ongoing legislative efforts.
[98]


As the law now stands, extra-judicial killings and enforced
disappearances in this jurisdiction are not crimes penalized
separately from the component criminal acts undertaken to carry out
these killings and enforced disappearances and are now penalized
under the Revised Penal Code and special laws.
[99]
The simple
reason is that the Legislature has not spoken on the matter; the
determination of what acts are criminal and what the corresponding
penalty these criminal acts should carry are matters of substantive
law that only the Legislature has the power to enact under the
countrys constitutional scheme and power structure.

Even without the benefit of directly applicable substantive laws on
extra-judicial killings and enforced disappearances, however, the
Supreme Court is not powerless to act under its own constitutional
mandate to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice and
procedure in all courts,
[100]
since extrajudicial killings and enforced
disappearances, by their nature and purpose, constitute State or
private party violation of the constitutional rights of individuals to life,
liberty and security. Although the Courts power is strictly procedural
and as such does not diminish, increase or modify substantive
rights, the legal protection that the Court can provide can be very
meaningful through the procedures it sets in addressing extrajudicial
killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby
directly compel the public authorities to act on actual or threatened
violations of constitutional rights. To state the obvious, judicial
17

intervention can make a difference even if only procedurally in a
situation when the very same investigating public authorities may
have had a hand in the threatened or actual violations of
constitutional rights.

Lest this Court intervention be misunderstood, we clarify once again
that we do not rule on any issue of criminal culpability for the
extrajudicial killing or enforced disappearance. This is an issue that
requires criminal action before our criminal courts based on our
existing penal laws. Our intervention is in determining whether an
enforced disappearance has taken place and who is responsible or
accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public
authorities to discharge in these situations, under the Rule on the
Writ of Amparo, is twofold. The first is to ensure that all efforts
at disclosure and investigation are undertaken under pain of
indirect contempt from this Court when governmental efforts are less
than what the individual situations require. The second is to address
the disappearance, so that the life of the victim is preserved and his
or her liberty and security restored. In these senses, our orders and
directives relative to the writ are continuing efforts that are not truly
terminated until the extrajudicial killing or enforced disappearance is
fully addressed by the complete determination of the fate and the
whereabouts of the victim, by the production of the disappeared
person and the restoration of his or her liberty and security, and, in
the proper case, by the commencement of criminal action against
the guilty parties.


Enforced Disappearance
Under International Law

From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human
rights.
[101]
It does not only violate the right to life, liberty and security
of the desaparecido; it affects their families as well through the
denial of their right to information regarding the circumstances of the
disappeared family member. Thus, enforced disappearances have
been said to be a double form of torture, with doubly paralyzing
impact for the victims, as they are kept ignorant of their own fates,
while family members are deprived of knowing the whereabouts of
their detained loved ones and suffer as well the serious economic
hardship and poverty that in most cases follow the disappearance of
the household breadwinner.
[102]


The UN General Assembly first considered the issue of
Disappeared Persons in December 1978 under Resolution
33/173. The Resolution expressed the General Assemblys deep
concern arising from reports from various parts of the world relating
to enforced or involuntary disappearances, and requested the UN
Commission on Human Rights to consider the issue of enforced
disappearances with a view to making appropriate
recommendations.
[103]


In 1992, in response to the reality that the insidious practice of
enforced disappearance had become a global phenomenon, the UN
General Assembly adopted the Declaration on the Protection of
All Persons from Enforced Disappearance (Declaration).
[104]
This
Declaration, for the first time, provided in its third preambular clause
a working description of enforced disappearance, as follows:

Deeply concerned that in many countries, often in a persistent
manner, enforced disappearances occur, in the sense that
persons are arrested, detained or abducted against their will or
otherwise deprived of their liberty by officials of different
branches or levels of Government, or by organized groups or
private individuals acting on behalf of, or with the support,
direct or indirect, consent or acquiescence of the Government,
followed by a refusal to disclose the fate or whereabouts of the
persons concerned or a refusal to acknowledge the deprivation
of their liberty,which places such persons outside the protection of
the law. [Emphasis supplied]


Fourteen years after (or on December 20, 2006), the UN General
Assembly adopted the International Convention for the Protection of
All Persons from Enforced Disappearance (Convention).
[105]
The
Convention was opened for signature in Paris, France on February
6, 2007.
[106]
Article 2 of the Convention defined enforced
disappearance as follows:

For the purposes of this Convention, enforced disappearance is
considered to be the arrest, detention, abduction or any other form
of deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts
of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument
to assert that there is a right not to be subject to enforced
disappearance
[107]
and that this right is non-derogable.
[108]
It
provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties to
codify enforced disappearance as an offense punishable with
appropriate penalties under their criminal law.
[109]
It also recognizes
the right of relatives of the disappeared persons and of the society
as a whole to know the truth on the fate and whereabouts of the
disappeared and on the progress and results of the
investigation.
[110]
Lastly, it classifies enforced disappearance as a
continuing offense, such that statutes of limitations shall not apply
until the fate and whereabouts of the victim are established.
[111]



Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the
Convention, so that the country is not yet committed to enact any
law penalizing enforced disappearance as a crime. The absence of
a specific penal law, however, is not a stumbling block for action
from this Court, as heretofore mentioned; underlying every enforced
disappearance is a violation of the constitutional rights to life, liberty
and security that the Supreme Court is mandated by the Constitution
to protect through its rule-making powers.

Separately from the Constitution (but still pursuant to its terms), the
Court is guided, in acting on Amparo cases, by the reality that the
Philippines is a member of the UN, bound by its Charter and by the
various conventions we signed and ratified, particularly the
conventions touching on humans rights. Under the UN Charter, the
Philippines pledged to promote universal respect for, and
observance of, human rights and fundamental freedoms for all
without distinctions as to race, sex, language or
religion.
[112]
Although no universal agreement has been reached on
the precise extent of the human rights and fundamental freedoms
guaranteed to all by the Charter,
[113]
it was the UN itself that issued
the Declaration on enforced disappearance, and this Declaration
states:
[114]


Any act of enforced disappearance is an offence to dignity. It is
condemned as a denial of the purposes of the Charter of the
United Nations and as a grave and flagrant violation of human
rights and fundamental freedoms proclaimed in the Universal
Declaration of Human Rights and reaffirmed and developed in
international instruments in this field. [Emphasis supplied]
18


As a matter of human right and fundamental freedom and as a
policy matter made in a UN Declaration, the ban on enforced
disappearance cannot but have its effects on the country, given our
own adherence to generally accepted principles of international law
as part of the law of the land.
[115]


In the recent case of Pharmaceutical and Health Care Association of
the Philippines v. Duque III,
[116]
we held that:

Under the 1987 Constitution, international law can become part of
the sphere of domestic law either
by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of
domestic law. [Emphasis supplied]

We characterized generally accepted principles of international law
as norms of general or customary international law that are binding
on all states. We held further:
[117]


[G]enerally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules
accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on
the part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice
in question is rendered obligatory by the existence of a rule of
law requiring it. [Emphasis in the original]

The most widely accepted statement of sources of international law
today is Article 38(1) of the Statute of the International Court of
Justice, which provides that the Court shall apply international
custom, as evidence of a general practice accepted as law.
[118]
The
material sources of custom include State practice, State legislation,
international and national judicial decisions, recitals in treaties and
other international instruments, a pattern of treaties in the same
form, the practice of international organs, and resolutions relating to
legal questions in the UN General Assembly.
[119]
Sometimes
referred to as evidence of international law,
[120]
these sources
identify the substance and content of the obligations of States and
are indicative of the State practice and opinio juris requirements
of international law.
[121]
We note the following in these respects:

First, barely two years from the adoption of the Declaration, the
Organization of American States (OAS) General Assembly adopted
the Inter-American Convention on Enforced Disappearance of
Persons in June 1994.
[122]
State parties undertook under this
Convention not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or
suspension of individual guarantees.
[123]
One of the key provisions
includes the States obligation to enact the crime of forced
disappearance in their respective national criminal laws and to
establish jurisdiction over such cases when the crime was
committed within their jurisdiction, when the victim is a national of
that State, and when the alleged criminal is within its territory and it
does not proceed to extradite him, which can be interpreted as
establishing universal jurisdiction among the parties to the Inter-
American Convention.
[124]
At present, Colombia, Guatemala,
Paraguay, Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have defined
activities involving enforced disappearance to be criminal.
[125]


Second, in Europe, the European Convention on Human Rights has
no explicit provision dealing with the protection against enforced
disappearance. The European Court of Human Rights (ECHR),
however, has applied the Convention in a way that provides ample
protection for the underlying rights affected by enforced
disappearance through the Conventions Article 2 on the right to life;
Article 3 on the prohibition of torture; Article 5 on the right to liberty
and security; Article 6, paragraph 1 on the right to a fair trial; and
Article 13 on the right to an effective remedy. A leading example
demonstrating the protection afforded by the European Convention
is Kurt v. Turkey,
[126]
where the ECHR found a violation of the right
to liberty and security of the disappeared person when the
applicants son disappeared after being taken into custody by
Turkish forces in the Kurdish village of Agilli in November 1993. It
further found the applicant (the disappeared persons mother) to be
a victim of a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations
undertaken. The ECHR also saw the lack of any meaningful
investigation by the State as a violation of Article 13.
[127]


Third, in the United States, the status of the prohibition on enforced
disappearance as part of customary international law is recognized
in the most recent edition of Restatement of the Law: The
Third,
[128]
which provides that [a] State violates international law if,
as a matter of State policy, it practices, encourages, or condones
(3) the murder or causing the disappearance of individuals.
[129]
We
significantly note that in a related matter that finds close
identification with enforced disappearance the matter of torture
the United States Court of Appeals for the Second Circuit Court
held in Filartiga v. Pena-Irala
[130]
that the prohibition on torture had
attained the status of customary international law. The court further
elaborated on the significance of UN declarations, as follows:

These U.N. declarations are significant because they specify with
great precision the obligations of member nations under the Charter.
Since their adoption, "(m)embers can no longer contend that they do
not know what human rights they promised in the Charter to
promote. Moreover, a U.N. Declaration is, according to one
authoritative definition, "a formal and solemn instrument, suitable for
rare occasions when principles of great and lasting importance are
being enunciated. Accordingly, it has been observed that the
Universal Declaration of Human Rights "no longer fits into the
dichotomy of binding treaty against non-binding pronouncement,'
but is rather an authoritative statement of the international
community." Thus, a Declaration creates an expectation of
adherence, and "insofar as the expectation is gradually justified by
State practice, a declaration may by custom become recognized as
laying down rules binding upon the States." Indeed, several
commentators have concluded that the Universal Declaration has
become, in toto, a part of binding, customary international law.
[Citations omitted]

Fourth, in interpreting Article 2 (right to an effective domestic
remedy) of the International Convention on Civil and Political Rights
(ICCPR), to which the Philippines is both a signatory and a State
Party, the UN Human Rights Committee, under the Office of the
High Commissioner for Human Rights, has stated that the act of
enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or
punishment) and 9 (right to liberty and security of the person) of the
ICCPR, and the act may also amount to a crime against
humanity.
[131]


Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing
the International Criminal Court (ICC) also covers enforced
disappearances insofar as they are defined as crimes against
humanity,
[132]
i.e., crimes committed as part of a widespread or
systematic attack against any civilian population, with knowledge of
the attack. While more than 100 countries have ratified the Rome
19

Statute,
[133]
the Philippines is still merely a signatory and has not yet
ratified it. We note that Article 7(1) of the Rome Statute has been
incorporated in the statutes of other international and hybrid
tribunals, including Sierra Leone Special Court, the Special Panels
for Serious Crimes in Timor-Leste, and the Extraordinary Chambers
in the Courts of Cambodia.
[134]
In addition, the implementing
legislation of State Parties to the Rome Statute of the ICC has given
rise to a number of national criminal provisions also covering
enforced disappearance.
[135]


While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of
the Rome Statute) and has not formally declared enforced
disappearance as a specific crime, the above recital shows
that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban on it
is now a generally accepted principle of international
law, which we should consider a part of the law of the land, and
which we should act upon to the extent already allowed under
our laws and the international conventions that bind us.

The following civil or political rights under the Universal Declaration
of Human Rights, the ICCPR and the International Convention on
Economic, Social and Cultural Rights (ICESR) may be infringed in
the course of a disappearance:
[136]


1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and
compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party,
provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have
his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State,
and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such
remedies when granted. [Emphasis supplied]

In General Comment No. 31, the UN Human Rights
Committee opined that the right to an effective remedy under Article
2 of the ICCPR includes the obligation of the State to investigate
ICCPR violations promptly, thoroughly, and effectively, viz:
[137]


15. Article 2, paragraph 3, requires that in addition to effective
protection of Covenant rights, States Parties must ensure that
individuals also have accessible and effective remedies to
vindicate those rights The Committee attaches importance to
States Parties' establishing appropriate judicial andadministrative
mechanisms for addressing claims of rights violations under
domestic law Administrative mechanisms are particularly
required to give effect to the general obligation to investigate
allegations of violations promptly, thoroughly and
effectively through independent and impartial bodies. A failure
by a State Party to investigate allegations of violations could in and
of itself give rise to a separate breach of the Covenant. Cessation of
an ongoing violation is an essential element of the right to an
effective remedy. [Emphasis supplied]


The UN Human Rights Committee further stated in the same
General Comment No. 31 that failure to investigate as well as failure
to bring to justice the perpetrators of ICCPR violations could in and
of itself give rise to a separate breach of the Covenant, thus:
[138]


18. Where the investigations referred to in paragraph 15 reveal
violations of certain Covenant rights, States Parties must ensure
that those responsible are brought to justice. As with failure to
investigate, failure to bring to justice perpetrators of such
violations could in and of itself give rise to a separate breach of
the Covenant. These obligations arise notably in respect of
those violations recognized as criminal under either domestic
or international law, such as torture and similar cruel, inhuman and
degrading treatment (article 7), summary and arbitrary killing (article
6) and enforced disappearance (articles 7 and 9 and, frequently,
6). Indeed, the problem of impunity for these violations, a matter of
sustained concern by the Committee, may well be an important
contributing element in the recurrence of the violations. When
committed as part of a widespread or systematic attack on a civilian
population, these violations of the Covenant are crimes against
humanity (see Rome Statute of the International Criminal Court,
article 7). [Emphasis supplied]

In Secretary of National Defense v. Manalo,
[139]
this Court, in ruling
that the right to security of persons is a guarantee of the protection
of ones right by the government, held that:

The right to security of person in this third sense is a corollary of the
policy that the State guarantees full respect for human rights under
Article II, Section 11 of the 1987 Constitution. As the government is
the chief guarantor of order and security, the Constitutional
guarantee of the rights to life, liberty and security of person is
rendered ineffective if government does not afford protection to
these rights especially when they are under threat. Protection
includes conducting effective investigations, organization of
the government apparatus to extend protection to victims of
extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar
of justice. The Inter-American Court of Human Rights stressed the
importance of investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious
manner and not as a mere formality preordained to be
ineffective. An investigation must have an objective and
be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the
victim or his family or upon their offer of proof, without an effective
search for the truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,
[140]
where the ECHR
interpreted the right to security not only as a prohibition on the
State against arbitrary deprivation of liberty, but also as the
imposition of a positive duty to afford protection to the right to
liberty. The Court notably quoted the following ECHR ruling:

[A]ny deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law
but must equally be in keeping with the very purpose of Article 5,
namely to protect the individual from arbitrariness... Having
assumed control over that individual, it is incumbent on the
20

authorities to account for his or her whereabouts. For this
reason, Article 5 must be seen as requiring the authorities to
take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation
into an arguable claim that a person has been taken into
custody and has not been seen since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the
Writ of Amparo, which the Court made effective on October 24,
2007. Although the Amparo Rule still has gaps waiting to be filled
through substantive law, as evidenced primarily by the lack of a
concrete definition of enforced disappearance, the materials cited
above, among others, provide ample guidance and standards
on how, through the medium of the Amparo Rule, the Court can
provide remedies and protect the constitutional rights to life,
liberty and security that underlie every enforced
disappearance.

Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has
discharged the burden of proving the allegations of the petition for
the Writ of Amparo by the degree of proof required by
the Amparo Rule, we shall discuss briefly the unique evidentiary
difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of
the Amparo Rule shall encounter.

These difficulties largely arise because the State itself the party
whose involvement is alleged investigates enforced
disappearances. Past experiences in other jurisdictions show that
the evidentiary difficulties are generally threefold.

First, there may be a deliberate concealment of the identities of
the direct perpetrators.
[141]
Experts note that abductors are well
organized, armed and usually members of the military or police
forces, thus:

The victim is generally arrested by the security forces or by persons
acting under some form of governmental authority. In many
countries the units that plan, implement and execute the program
are generally specialized, highly-secret bodies within the armed or
security forces. They are generally directed through a separate,
clandestine chain of command, but they have the necessary
credentials to avoid or prevent any interference by the "legal" police
forces. These authorities take their victims to secret detention
centers where they subject them to interrogation and torture without
fear of judicial or other controls.
[142]


In addition, there are usually no witnesses to the crime; if there are,
these witnesses are usually afraid to speak out publicly or to testify
on the disappearance out of fear for their own lives.
[143]
We have
had occasion to note this difficulty in Secretary of Defense v.
Manalo
[144]
when we acknowledged that where powerful military
officers are implicated, the hesitation of witnesses to surface and
testify against them comes as no surprise.

Second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of evidence
in an enforced disappearance i.e., the corpus delicti or the victims
body is usually concealed to effectively thwart the start of any
investigation or the progress of one that may have begun.
[145]
The
problem for the victims family is the States virtual monopoly of
access to pertinent evidence. The Inter-American Court of Human
Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez
[146]
that inherent to the practice of enforced disappearance
is the deliberate use of the States power to destroy the pertinent
evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime.
[147]


Third is the element of denial; in many cases, the State authorities
deliberately deny that the enforced disappearance ever
occurred.
[148]
Deniability is central to the policy of enforced
disappearances, as the absence of any proven disappearance
makes it easier to escape the application of legal standards ensuring
the victims human rights.
[149]
Experience shows that government
officials typically respond to requests for information
about desaparecidos by saying that they are not aware of any
disappearance, that the missing people may have fled the country,
or that their names have merely been invented.
[150]


These considerations are alive in our minds, as these are the
difficulties we confront, in one form or another, in our consideration
of this case.

Evidence and Burden of Proof in
Enforced Disappearances Cases

Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the
parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall
be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the parties.
x x x
x
Section 17. Burden of Proof and Standard of Diligence Required.
The parties shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary
diligence as required by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent who is a public official or employee must prove that
extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed or evade
responsibility or liability.
Section 18. Judgment. If the allegations in the petition are
proven by substantial evidence, the court shall grant the privilege
of the writ and such reliefs as may be proper and
appropriate; otherwise, the privilege shall be denied. [Emphasis
supplied]


These characteristics namely, of being summary and the use of
substantial evidence as the required level of proof (in contrast to the
usual preponderance of evidence or proof beyond reasonable doubt
in court proceedings) reveal the clear intent of the framers of
theAmparo Rule to have the equivalent of an administrative
proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required
the duty of public officials and employees to observe extraordinary
diligence point, too, to the extraordinary measures expected in the
protection of constitutional rights and in the consequent handling
and investigation of extra-judicial killings and enforced
disappearance cases.

Thus, in these proceedings, the Amparo petitioner needs only to
properly comply with the substance and form requirements of a Writ
of Amparo petition, as discussed above, and prove the allegations
by substantial evidence. Once a rebuttable case has been proven,
the respondents must then respond and prove their defenses based
on the standard of diligence required. The rebuttable case, of
course, must show that an enforced disappearance took place under
circumstances showing a violation of the victims constitutional rights
21

to life, liberty or security, and the failure on the part of the
investigating authorities to appropriately respond.

The landmark case of Ang Tibay v. Court of Industrial
Relations
[151]
provided the Court its first opportunity to define the
substantial evidence required to arrive at a valid decision in
administrative proceedings. To directly quote Ang Tibay:

Substantial evidence is more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. [citations omitted] The statute
provides that the rules of evidence prevailing in courts of law and
equity shall not be controlling. The obvious purpose of this and
similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter
which would be deemed incompetent in judicial proceedings would
not invalidate the administrative order. [citations omitted] But this
assurance of a desirable flexibility in administrative procedure does
not go so far as to justify orders without a basis in evidence having
rational probative force. [Emphasis supplied]


In Secretary of Defense v. Manalo,
[152]
which was the Courts first
petition for a Writ of Amparo, we recognized that the full and
exhaustive proceedings that the substantial evidence standard
regularly requires do not need to apply due to the summary nature
of Amparoproceedings. We said:

The remedy [of the writ of amparo] provides rapid judicial relief as it
partakes of a summary proceeding that requires only substantial
evidence to make the appropriate reliefs available to the petitioner; it
is not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance
of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive
proceedings. [Emphasis supplied]

Not to be forgotten in considering the evidentiary aspects
of Amparo petitions are the unique difficulties presented by the
nature of enforced disappearances, heretofore discussed, which
difficulties this Court must frontally meet if the Amparo Rule is to be
given a chance to achieve its objectives. These evidentiary
difficulties compel the Court to adopt standards appropriate and
responsive to the circumstances, without transgressing the due
process requirements that underlie every proceeding.

In the seminal case of Velasquez Rodriguez,
[153]
the IACHR faced
with a lack of direct evidence that the government of Honduras was
involved in Velasquez Rodriguez disappearance adopted a
relaxed and informal evidentiary standard, and established the rule
that presumes governmental responsibility for a disappearance if it
can be proven that the government carries out a general practice of
enforced disappearances and the specific case can be linked to that
practice.
[154]
The IACHR took note of the realistic fact that enforced
disappearances could be proven only through circumstantial or
indirect evidence or by logical inference; otherwise, it was
impossible to prove that an individual had been made to
disappear. It held:

130. The practice of international and domestic courts shows that
direct evidence, whether testimonial or documentary, is not the only
type of evidence that may be legitimately considered in reaching a
decision. Circumstantial evidence, indicia, and presumptions
may be considered, so long as they lead to conclusions
consistent with the facts.
131. Circumstantial or presumptive evidence is especially
important in allegations of disappearances, because this type
of repression is characterized by an attempt to suppress all
information about the kidnapping or the whereabouts and fate
of the victim. [Emphasis supplied]

In concluding that the disappearance of Manfredo Velsquez
(Manfredo) was carried out by agents who acted under cover of
public authority, the IACHR relied on circumstantial evidence
including the hearsay testimony of Zenaida Velsquez, the
victims sister, who described Manfredos kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped
by men in civilian clothes in broad daylight. She also told the Court
that a former Honduran military official had announced that
Manfredo was kidnapped by a special military squadron acting
under orders of the Chief of the Armed Forces.
[155]
The IACHR
likewise considered the hearsay testimony of a second witness who
asserted that he had been told by a Honduran military officer about
the disappearance, and a third witness who testified that he had
spoken in prison to a man who identified himself as Manfredo.
[156]


Velasquez stresses the lesson that flexibility is necessary
under the unique circumstances that enforced disappearance cases
pose to the courts; to have an effective remedy, the standard of
evidence must be responsive to the evidentiary difficulties
faced. On the one hand, we cannot be arbitrary in the admission
and appreciation of evidence, as arbitrariness entails violation of
rights and cannot be used as an effective counter-measure; we only
compound the problem if a wrong is addressed by the commission
of another wrong. On the other hand, we cannot be very strict in our
evidentiary rules and cannot consider evidence the way we do in the
usual criminal and civil cases; precisely, the proceedings before us
are administrative in nature where, as a rule, technical rules of
evidence are not strictly observed. Thus, while we must follow the
substantial evidence rule, we must observe flexibility in considering
the evidence we shall take into account.

The fair and proper rule, to our mind, is to consider all the
pieces of evidence adduced in their totality, and to consider any
evidence otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible evidence
adduced. In other words, we reduce our rules to the most basic
test of reason i.e., to the relevance of the evidence to the
issue at hand and its consistency with all other pieces of
adduced evidence. Thus, even hearsay evidence can be
admitted if it satisfies this basic minimum test.

We note in this regard that the use of flexibility in the
consideration of evidence is not at all novel in the Philippine legal
system. In child abuse cases, Section 28 of the Rule on
Examination of a Child Witness
[157]
is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of the
hearsay testimony of a child describing any act or attempted act of
sexual abuse in any criminal or non-criminal proceeding, subject to
certain prerequisites and the right of cross-examination by the
adverse party. The admission of the statement is determined by the
court in light of specified subjective and objective considerations that
provide sufficient indicia of reliability of the child witness.
[158]
These
requisites for admission find their counterpart in the present case
under the above-described conditions for the exercise of flexibility in
the consideration of evidence, including hearsay evidence, in
extrajudicial killings and enforced disappearance cases.

Assessment of the Evidence

The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN
Declaration we have cited?

The Convention defines enforced disappearance as the arrest,
detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with
22

the authorization, support or acquiescence of the State, followed by
a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the
law.
[159]
Under this definition, the elements that constitute enforced
disappearance are essentially fourfold:
[160]


(a) arrest, detention, abduction or any form of deprivation of
liberty;

(b) carried out by agents of the State or persons or groups of
persons acting with the authorization, support or acquiescence
of the State;

(c) followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person; and

(d) placement of the disappeared person outside the protection of
the law. [Emphasis supplied]

We find no direct evidence indicating how the victim actually
disappeared. The direct evidence at hand only shows that Tagitis
went out of the ASY Pension House after depositing his room key
with the hotel desk and was never seen nor heard of again. The
undisputed conclusion, however, from all concerned the petitioner,
Tagitis colleagues and even the police authorities is that Tagistis
disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition
and testimony, as we shall discuss below.

We likewise find no direct evidence showing that operatives of PNP
CIDG Zamboanga abducted or arrested Tagitis. If at all, only the
respondents allegation that Tagistis was under CIDG Zamboanga
custody stands on record, but it is not supported by any other
evidence, direct or circumstantial.

In her direct testimony, the respondent pointed to two sources of
information as her bases for her allegation that Tagistis had been
placed under government custody (in contrast with CIDG
Zamboanga custody). The first was an unnamed friend in
Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis was
in good hands. Nothing came out of this claim, as both the
respondent herself and her witness, Mrs. Talbin, failed to establish
that Col. Ancanan gave them any information that Tagitis was in
government custody. Col. Ancanan, for his part, admitted the
meeting with the respondent but denied giving her any information
about the disappearance.

The more specific and productive source of information was
Col. Kasim, whom the respondent, together with her witness Mrs.
Talbin, met in Camp Katitipan in Davao City. To quote the relevant
portions of the respondents testimony:

Q: Were you able to speak to other military officials regarding
the whereabouts of your husband particularly those in charge of any
records or investigation?

A: I went to Camp Katitipan in Davao City. Then one military
officer, Col. Casim, told me that my husband is being abducted
[sic] because he is under custodial investigation because he is
allegedly parang liason ng J.I., sir.

Q: What is J.I.?

A: Jemaah Islamiah, sir.

Q: Was there any information that was read to you during one of
those visits of yours in that Camp?

A: Col. Casim did not furnish me a copy of his report
because he said those reports are highly confidential, sir.

Q: Was it read to you then even though you were not
furnished a copy?

A: Yes, sir. In front of us, my friends.

Q: And what was the content of that highly confidential report?

A: Those alleged activities of Engineer Tagitis,
sir.
[161]
[Emphasis supplied]

She confirmed this testimony in her cross-examination:

Q: You also mentioned that you went to Camp Katitipan in
Davao City?

A: Yes, maam.

Q: And a certain Col. Kasim told you that your husband was
abducted and under custodial investigation?

A: Yes, maam.

Q: And you mentioned that he showed you a report?

A: Yes, maam.

Q: Were you able to read the contents of that report?

A: He did not furnish me a copy of those [sic] report
because those [sic] were highly confidential. That is a military
report, maam.

Q: But you were able to read the contents?

A: No. But he read it in front of us, my friends, maam.

Q: How many were you when you went to see Col. Kasim?

A: There were three of us, maam.

Q: Who were your companions?

A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City,
Davao Oriental, maam.
[162]


x x x
x

Q: When you were told that your husband is in good hands,
what was your reaction and what did you do?

A: May binasa kasi sya that my husband has
a parang meeting with other people na parang mga terorista na
mga tao. Tapos at the end of the report is [sic] under custodial
investigation. So I told him Colonel, my husband is sick. He is
diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa
naghohold sa asawa ko na bigyan siya ng gamot, maam.
[163]


x x x x

Q: You mentioned that you received information that Engineer
Tagitis is being held by the CIDG in Zamboanga, did you go to CIDG
Zamboanga to verify that information?

23

A: I did not go to CIDG Zamboanga. I went to Camp Karingal
instead. Enough na yun na effort ko because I know that they would
deny it, maam.
[164]



On February 11, 2008, the respondent presented Mrs. Talbin to
corroborate her testimony that her husband was abducted and held
under custodial investigation by the PNP-CIDG Zamboanga
City, viz:

Q: You said that you went to Camp Katitipan in Davao City
sometime November 24, 2007, who was with you when you went
there?

A: Mary Jean Tagitis, sir.

Q: Only the two of you?

A: No. We have some other companions. We were four at that
time, sir.

Q: Who were they?

A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.

Q: Were you able to talk, see some other officials at Camp
Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

Q: Were you able to talk to him?

A: Yes, sir.

Q: The four of you?

A: Yes, sir.

Q: What information did you get from Col. Kasim during that
time?

A: The first time we met with [him] I asked him if he knew of the
exact location, if he can furnish us the location of Engr. Tagitis. And
he was reading this report. He told us that Engr. Tagitis is in
good hands. He is with the military, but he is not certain
whether he is with the AFP or PNP. He has this serious
case. He was charged of terrorism because he was under
surveillance from January 2007 up to the time that he was
abducted. He told us that he was under custodial
investigation. As Ive said earlier, he was seen under
surveillance from January. He was seen talking to Omar Patik,
a certain Santos of Bulacan who is also a Balik Islam and
charged with terrorism. He was seen carrying boxes of
medicines. Then we asked him how long will he be in custodial
investigation. He said until we can get some information. But he
also told us that he cannot give us that report because it was a raw
report. It was not official, sir.

Q: You said that he was reading a report, was that report in
document form, in a piece of paper or was it in the computer or
what?

A: As far as I can see it, sir, it is written in white bond paper. I
dont know if it was computerized but Im certain that it was
typewritten. Im not sure if it used computer, fax or what, sir.

Q: When he was reading it to you, was he reading it line by line
or he was reading in a summary form?

A: Sometimes he was glancing to the report and talking to us,
sir.
[165]


x x x
x

Q: Were you informed as to the place where he was being kept
during that time?

A: He did not tell us where he [Tagitis] was being kept. But
he mentioned this Talipapao, Sulu, sir.

Q: After that incident, what did you do if any?

A: We just left and as Ive mentioned, we just waited because
that raw information that he was reading to us [sic] after the
custodial investigation, Engineer Tagitis will be released. [Emphasis
supplied]
[166]


Col. Kasim never denied that he met with the respondent and her
friends, and that he provided them information based on the input of
an unnamed asset. He simply claimed in his testimony that the
informal letter he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG. He also
stressed that the information he provided the respondent was
merely a raw report from barangay intelligence that still needed
confirmation and follow up as to its veracity.
[167]


To be sure, the respondents and Mrs. Talbins testimonies were far
from perfect, as the petitioners pointed out. The respondent
mistakenly characterized Col. Kasim as a military officer who told
her that her husband is being abducted because he is under
custodial investigation because he is allegedly parang liason ng
J.I. The petitioners also noted that Mrs. Talbins testimony
imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is
with the military, but he is not certain whether it is the PNP or AFP is
not worthy of belief, since Sr. Supt. Kasim is a high ranking police
officer who would certainly know that the PNP is not part of the
military.

Upon deeper consideration of these inconsistencies, however, what
appears clear to us is that the petitioners never really steadfastly
disputed or presented evidence to refute the credibility of the
respondent and her witness, Mrs. Talbin. The inconsistencies the
petitioners point out relate, more than anything else, to details that
should not affect the credibility of the respondent and Mrs. Talbin;
the inconsistencies are not on material points.
[168]
We note, for
example, that these witnesses are lay people in so far as military
and police matters are concerned, and confusion between the police
and the military is not unusual. As a rule, minor inconsistencies
such as these indicate truthfulness rather than prevarication
[169]
and
only tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail; the
latter cannot but generate suspicion that the material circumstances
they testified to were integral parts of a well thought of and
prefabricated story.
[170]


Based on these considerations and the unique evidentiary
situation in enforced disappearance cases, we hold it duly
established that Col. Kasim informed the respondent and her
friends, based on the informants letter, that Tagitis, reputedly a
liaison for the JI and who had been under surveillance since
January 2007, was in good hands and under custodial
investigation for complicity with the JI after he was seen talking
to one Omar Patik and a certain Santos of Bulacan, a Balik
Islam charged with terrorism. The respondents and Mrs.
Talbins testimonies cannot simply be defeated by Col. Kasims plain
denial and his claim that he had destroyed his informants letter, the
critical piece of evidence that supports or negates the parties
24

conflicting claims. Col. Kasims admitted destruction of this letter
effectively, a suppression of this evidence raises the presumption
that the letter, if produced, would be proof of what the respondent
claimed.
[171]
For brevity, we shall call the evidence of what Col.
Kasim reported to the respondent to be the Kasim evidence.

Given this evidence, our next step is to decide whether we can
accept this evidence, in lieu of direct evidence, as proof that the
disappearance of Tagitis was due to action with government
participation, knowledge or consent and that he was held for
custodial investigation. We note in this regard that Col. Kasim was
never quoted to have said that the custodial investigation was by the
CIDG Zamboanga. The Kasim evidence only implies government
intervention through the use of the term custodial investigation,
and does not at all point to CIDG Zamboanga as Tagitis custodian.

Strictly speaking, we are faced here with a classic case of hearsay
evidence i.e., evidence whose probative value is not based on the
personal knowledge of the witnesses (the respondent, Mrs. Talbin
and Col. Kasim himself) but on the knowledge of some other person
not on the witness stand (the informant).
[172]


To say that this piece of evidence is incompetent and inadmissible
evidence of what it substantively states is to acknowledge as the
petitioners effectively suggest that in the absence of any direct
evidence, we should simply dismiss the petition. To our mind, an
immediate dismissal for this reason is no different from a statement
that the Amparo Rule despite its terms is ineffective, as it cannot
allow for the special evidentiary difficulties that are unavoidably
present in Amparo situations, particularly in extrajudicial killings and
enforced disappearances. The Amparo Rule was not promulgated
with this intent or with the intent to make it a token gesture of
concern for constitutional rights. It was promulgated to provide
effective and timely remedies, using and profiting from local and
international experiences in extrajudicial killings and enforced
disappearances, as the situation may require. Consequently, we
have no choice but to meet the evidentiary difficulties inherent in
enforced disappearances with the flexibility that these difficulties
demand.

To give full meaning to our Constitution and the rights it protects, we
hold that, as in Velasquez, we should at least take a close look at
the available evidence to determine the correct import of every piece
of evidence even of those usually considered inadmissible under
the general rules of evidence taking into account the surrounding
circumstances and the test of reason that we can use as basic
minimum admissibility requirement. In the present case, we should
at least determine whether the Kasim evidence before us is relevant
and meaningful to the disappearance of Tagistis and reasonably
consistent with other evidence in the case.

The evidence about Tagitis personal circumstances surrounded him
with an air of mystery. He was reputedly a consultant of the World
Bank and a Senior Honorary Counselor for the IDB who attended a
seminar in Zamboanga and thereafter proceded to Jolo for an
overnight stay, indicated by his request to Kunnong for the purchase
of a return ticket to Zamboanga the day after he arrived in
Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed
the Jolo police that Tagitis may have taken funds given to him in
trust for IDB scholars. Prof Matli later on stated that he never
accused Tagitis of taking away money held in trust, although he
confirmed that the IDB was seeking assistance in locating funds of
IDB scholars deposited in Tagitis personal account. Other than
these pieces of evidence, no other information exists in the records
relating to the personal circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal
circumstances. While the Amparo petition recited that he was taken
away by burly men believed to be police intelligence operatives, no
evidence whatsoever was introduced to support this
allegation. Thus, the available direct evidence is that Tagitis was last
seen at 12.30 p.m. of October 30, 2007 the day he arrived in Jolo
and was never seen again.

The Kasim evidence assumes critical materiality given the dearth of
direct evidence on the above aspects of the case, as it supplies the
gaps that were never looked into and clarified by police
investigation. It is the evidence, too, that colors a simple missing
person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into
question how the State reacted to the disappearance.

Denials on the part of the police authorities, and frustration on the
part of the respondent, characterize the attempts to locate
Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis
could have been taken by the Abu Sayyaf or other groups fighting
the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo police
arrived at this conclusion. The respondents own inquiry in Jolo
yielded the answer that he was not missing but was with another
woman somewhere. Again, no evidence exists that this explanation
was arrived at based on an investigation. As already related above,
the inquiry with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it was only the
inquiry from Col. Kasim that yielded positive results. Col. Kasims
story, however, confirmed only the fact of his custodial investigation
(and, impliedly, his arrest or abduction), without identifying his
abductor/s or the party holding him in custody. The more significant
part of Col. Kasims story is that the abduction came after Tagitis
was seen talking with Omar Patik and a certain Santos of Bulacan, a
Balik Islam charged with terrorism. Mrs. Talbin mentioned, too, that
Tagitis was being held at Talipapao, Sulu. None of the police
agencies participating in the investigation ever pursued these
leads. Notably, TASK FORCE TAGITIS to which this information
was relayed did not appear to have lifted a finger to pursue these
aspects of the case.

More denials were manifested in the Returns on the writ to the CA
made by the petitioners. Then PNP Chief Gen. Avelino I. Razon
merely reported the directives he sent to the ARMM Regional
Director and the Regional Chief of the CIDG on Tagitis, and these
reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions
with negative results. These, to the PNP Chief, constituted the
exhaustion of all possible efforts. PNP-CIDG Chief General
Edgardo M. Doromal, for his part, also reported negative results
after searching all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and
thorough research, records show that no such person is being
detained in the CIDG or any of its department or divisions. PNP-
PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM
Regional Director PC Superintendent Joel R. Goltiao did no better in
their affidavits-returns, as they essentially reported the results of
their directives to their units to search for Tagitis.

The extent to which the police authorities acted was fully tested
when the CA constituted TASK FORCE TAGITIS, with specific
directives on what to do. The negative results reflected in the
Returns on the writ were again replicated during the three hearings
the CA scheduled. Aside from the previously mentioned retraction
that Prof. Matli made to correct his accusation that Tagitis took
money held in trust for students, PS Supt. Ajirim reiterated in his
testimony that the CIDG consistently denied any knowledge or
complicity in any abduction and said that there was no basis to
conclude that the CIDG or any police unit had anything to do with
the disappearance of Tagitis; he likewise considered it premature to
conclude that Tagitis simply ran away with the money in his custody.
25

As already noted above, the TASK FORCE notably did not pursue
any investigation about the personal circumstances of Tagitis, his
background in relation to the IDB and the background and activities
of this Bank itself, and the reported sighting of Tagistis with terrorists
and his alleged custody in Talipapao, Sulu. No attempt appears to
have ever been made to look into the alleged IDB funds that Tagitis
held in trust, or to tap any of the assets who are indispensable in
investigations of this nature. These omissions and negative results
were aggravated by the CA findings that it was only as late as
January 28, 2008 or three months after the disappearance that the
police authorities requested for clear pictures of Tagitis. Col. Kasim
could not attend the trial because his subpoena was not served,
despite the fact that he was designated as Ajirims replacement in
the latters last post. Thus, Col. Kasim was not then questioned. No
investigation even an internal one appeared to have been made
to inquire into the identity of Col. Kasims asset and what he
indeed wrote.

We glean from all these pieces of evidence and developments a
consistency in the governments denial of any complicity in the
disappearance of Tagitis, disrupted only by the report made by
Col. Kasim to the respondent at Camp Katitipan. Even Col.
Kasim, however, eventually denied that he ever made the disclosure
that Tagitis was under custodial investigation for complicity in
terrorism. Another distinctive trait that runs through these
developments is the governments dismissive approach to the
disappearance, starting from the initial response by the Jolo police
to Kunnongs initial reports of the disappearance, to the responses
made to the respondent when she herself reported and inquired
about her husbands disappearance, and even at TASK FORCE
TAGITIS itself.

As the CA found through TASK FORCE TAGITIS, the investigation
was at best haphazard since the authorities were looking for a man
whose picture they initially did not even secure. The returns and
reports made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial records of
Tagitis in their various departments and divisions. To point out the
obvious, if the abduction of Tagitis was a black operation because
it was unrecorded or officially unauthorized, no record of custody
would ever appear in the CIDG records; Tagitis, too, would not be
detained in the usual police or CIDG detention places. In sum,
none of the reports on record contains any meaningful results
or details on the depth and extent of the investigation made. To
be sure, reports of top police officials indicating the personnel and
units they directed to investigate can never constitute exhaustive
and meaningful investigation, or equal detailed investigative reports
of the activities undertaken to search for Tagitis. Indisputably, the
police authorities from the very beginning failed to come up to the
extraordinary diligence that the Amparo Rule requires.


CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasims
disclosure, made in an unguarded moment, unequivocally point to
some government complicity in the disappearance. The consistent
but unfounded denials and the haphazard investigations cannot but
point to this conclusion. For why would the government and its
officials engage in their chorus of concealment if the intent had not
been to deny what they already knew of the disappearance? Would
not an in-depth and thorough investigation that at least credibly
determined the fate of Tagitis be a feather in the governments cap
under the circumstances of the disappearance? From this
perspective, the evidence and developments, particularly the Kasim
evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the
UN Declaration, heretofore cited and quoted,
[173]
the evidence at
hand and the developments in this case confirm the fact of the
enforced disappearance and government complicity, under a
background of consistent and unfounded government denials and
haphazard handling. The disappearance as well effectively placed
Tagitis outside the protection of the law a situation that will subsist
unless this Court acts.
This kind of fact situation and the conclusion reached are not without
precedent in international enforced disappearance rulings. While
the facts are not exactly the same, the facts of this case run very
close to those of Timurtas v. Turkey,
[174]
a case decided by
ECHR. The European tribunal in that case acted on the basis of the
photocopy of a post-operation report in finding that Abdulvahap
Timurtas (Abdulvahap) was abducted and later detained by agents
(gendarmes) of the government of Turkey. The victim's father in this
case brought a claim against Turkey for numerous violations of the
European Convention, including the right to life (Article 2) and the
rights to liberty and security of a person (Article 5). The applicant
contended that on August 14, 1993, gendarmes apprehended his
son, Abdulvahap for being a leader of the Kurdish Workers Party
(PKK) in the Silopi region. The petition was filed in southeast Turkey
nearly six and one half years after the apprehension. According to
the father, gendarmes first detained Abdulvahap and then
transferred him to another detainment facility. Although there was
no eyewitness evidence of the apprehension or subsequent
detainment, the applicant presented evidence corroborating his
version of events, including a photocopy of a post-operation
report signed by the commander of gendarme operations in
Silopi, Turkey. The report included a description of Abdulvahap's
arrest and the result of a subsequent interrogation during detention
where he was accused of being a leader of the PKK in the Silopi
region. On this basis, Turkey was held responsible for Abdulvahaps
enforced disappearance.

Following the lead of this Turkish experience - adjusted to the
Philippine legal setting and the Amparo remedy this Court has
established, as applied to the unique facts and developments of
this case we believe and so hold that the government in
general, through the PNP and the PNP-CIDG, and in particular,
the Chiefs of these organizations together with Col. Kasim,
should be held fully accountable for the enforced
disappearance of Tagitis.

The PNP and CIDG are accountable because Section 24 of
Republic Act No. 6975, otherwise known as the PNP
Law,
[175]
specifies the PNP as the governmental office with the
mandate to investigate and prevent crimes, effect the arrest of
criminal offenders, bring offenders to justice and assist in their
prosecution. The PNP-CIDG, as Col. Jose Volpane Pante (then
Chief of CIDG Region 9) testified, is the investigative arm of the
PNP and is mandated to investigate and prosecute all cases
involving violations of the Revised Penal Code, particularly those
considered as heinous crimes.
[176]
Under the PNP organizational
structure, the PNP-CIDG is tasked to investigate all major crimes
involving violations of the Revised Penal Code and operates against
organized crime groups, unless the President assigns the case
exclusively to the National Bureau of Investigation (NBI).
[177]
No
indication exists in this case showing that the President ever directly
intervened by assigning the investigation of Tagitis disappearance
exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and
members were the ones who were remiss in their duties when the
government completely failed to exercise the extral'>To fully enforce
the Amparo remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of the PNP and
the PNP-CIDG investigations and actions, and the validation of their
results through hearings the CA may deem appropriate to
conduct. For purposes of these investigations, the PNP/PNP-CIDG
shall initially present to the CA a plan of action for further
investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action. On behalf of
26

this Court, the CA shall pass upon: the need for the PNP and the
PNP-CIDG to make disclosures of matters known to them as
indicated in this Decision and as further CA hearings may indicate;
the petitioners submissions; the sufficiency of their investigative
efforts; and submit to this Court a quarterly report containing its
actions and recommendations, copy furnished the petitioners and
the respondent, with the first report due at the end of the first
quarter counted from the finality of this Decision. The PNP and the
PNP-CIDG shall have one (1) full year to undertake their
investigation. The CA shall submit its full report for the
consideration of this Court at the end of the 4
th
quarter counted from
the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners
petition for review on certiorari for lack of merit, and AFFIRM the
decision of the Court of Appeals dated March 7, 2008 under the
following terms:
a. Recognition that the disappearance of Engineer Morced
N. Tagitis is an enforced disappearance covered by the Rule on the
Writ of Amparo;
b. Without any specific pronouncement on exact
authorship and responsibility, declaring the government (through the
PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim
accountable for the enforced disappearance of Engineer Morced N.
Tagitis;
c. Confirmation of the validity of the Writ of Amparo the
Court of Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-
CIDG, through its Chief, directly responsible for the disclosure of
material facts known to the government and to their offices
regarding the disappearance of Engineer Morced N. Tagitis, and for
the conduct of proper investigations using extraordinary diligence,
with the obligation to show investigation results acceptable to this
Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in
this case and holding him accountable with the obligation to disclose
information known to him and to his assets in relation with the
enforced disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for
appropriate proceedings directed at the monitoring of the PNP and
PNP-CIDG investigations, actions and the validation of their results;
the PNP and the PNP-CIDG shall initially present to the Court of
Appeals a plan of action for further investigation, periodically
reporting their results to the Court of Appeals for consideration and
action;
g. Requiring the Court of Appeals to submit to this Court a
quarterly report with its recommendations, copy furnished the
incumbent PNP and PNP-CIDG Chiefs as petitioners and the
respondent, with the first report due at the end of the first quarter
counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full
year to undertake their investigations; the Court of Appeals shall
submit its full report for the consideration of this Court at the end of
the 4
th
quarter counted from the finality of this Decision;

These directives and those of the Court of Appeals made pursuant
to this Decision shall be given to, and shall be directly enforceable
against, whoever may be the incumbent Chiefs of the Philippine
National Police and its Criminal Investigation and Detection Group,
under pain of contempt from this Court when the initiatives and
efforts at disclosure and investigation constitute less than the
extraordinary diligence that the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique nature
of Amparo cases and their varying attendant circumstances, these
directives particularly, the referral back to and monitoring by the
CA are specific to this case and are not standard remedies that
can be applied to every Amparo situation.
before a competent court. General denial of the The dismissal of
the Amparo petition with respect to General Alexander Yano,
Commanding General, Philippine Army, and General Ruben Rafael,
Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is
hereby AFFIRMED.

G.R. No. L-4254 September 26, 1951
BORIS MEJOFF, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
Ambrosio T. Dollete for petitioner.
First Assistant Solicitor General Roberto A. Gianson and Solicitor
Florencio Villamor for respondents.
TUASON, J .:
This is a second petition for habeas corpus by Boris Mejoff, the first
having been denied in a decision of this Court of July 30, 1949. The
history of the petitioner's detention was thus briefly set forth in that
decision, written by Mr. Justice Bengzon:
The petitioner Boris Mejoff is an alien of Russian descent who was
brought to this country from Shanghai as a secret operative by the
Japanese forces during the latter's regime in these Islands. Upon
liberation he was arrested as a Japanese spy, by U.S. Army Counter
Intelligence Corps. Later he was handed to theCommonwealth
Government for disposition in accordance with Commonwealth Act
No. 682. Thereafter, the People's Court ordered his release. But the
deportation Board taking his case up, found that having no travel
documents Mejoff was illegally in this country, and consequently
referred the matter to the immigration authorities. After the
corresponding investigation, the Board of commissioners of
Immigration on April 5, 1948, declared that Mejoff had entered the
Philippines illegally in 1944, without inspection and admission by the
immigration officials at a designation port of entry and, therefore, it
ordered that he be deported on the first available transportation to
Russia. The petitioner was then under custody, he having been
arrested on March 18, 1948. In May 1948 he was transferred to the
Cebu Provincial Jail together with three other Russians to await the
arrival of some Russian vessels. In July and August of that year two
boats of Russian nationality called at the Cebu Port. But their
masters refused to take petitioner and his companions alleging lack
of authority to do so. In October 1948 after repeated failures to ship
this deportee abroad, the authorities removed him to Bilibid Prison at
Muntinglupa where he has been confined up to the present time,
inasmuch as the Commissioner of Immigration believes it is for the
best interests of the country to keep him under detention while
arrangements for his departure are being made.
The Court held the petitioner's detention temporary and said that
"temporary detention is a necessary step in the process of exclusion
or expulsion of undesirable aliens and that pending arrangements
for his deportation, the Government has the right to hold the
undesirable alien under confinement for a reasonable lenght of
time." It took note of the fact, manifested by the Solicitor General's
representative in the course of the of the oral argumment, that "this
Government desires to expel the alien, and does not relish keeping
him at the people's expense . . . making efforts to carry out the
decree of exclusion by the highest officer of the land." No period was
fixed within which the immigration authorities should carry out the
contemplated deportation beyond the statement that "The meaning
of 'reasonable time' depends upon the circumstances, specially the
difficulties of obtaining a passport, the availability of transportation,
the diplomatic arrangements with the governments concerned and
the efforts displayed to send the deportee away;" but the Court
warned that "under established precedents, too long a detention
may justify the issuance of a writ of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice
Perfecto, and the writer of this decision dissented. Mr. Justice Feria
and Mr. Justice Perfecto voted for outright discharge of the prisoner
from custody. Mr. Justice Paras qualified his dissent by stating that
he might agree "to further detention of the herein petitioner, provided
that he be released if after six months, the Government is still
27

unable to deport him." This writer joined in the latter dissent but
thought that two months constituted reasonable time.
Over two years having elapsed since the decision aforesaid was
promulgated, the Government has not found way and means of
removing the petitioner out of the country, and none are in sight,
although it should be said in justice to the deportation authorities, it
was through no fault of theirs that no ship or country would take the
petitioner.
Aliens illegally staying in the Philippines have no right of asylum
therein (Sowapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289, 290),
even if they are "stateless," which the petitioner claims to be. It is no
less true however, as impliedly stated in this Court's decision, supra,
that foreign nationals, not enemy against whom no charge has been
made other than that their permission to stay has expired, may not
indefinitely be kept in detention. The protection against deprivation
of liberty without due process of law and except for crimes
committed against the laws of the land is not limited to Philippine
citizens but extends to all residents, except enemy aliens,
regardless of nationality. Whether an alien who entered the country
in violation of its immigration laws may be detained for as long as
the Government is unable to deport him, is a point we need not
decide. The petitioner's entry into the Philippines was not unlawful;
he was brought by the armed and belligerent forces of a de
facto government whose decrees were law furing the occupation.
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts
the generally accepted principles of international law as part of the
law of Nation." And in a resolution entitled "Universal Declaration of
Human Rights" and approved by the General Assembly of the
United Nations of which the Philippines is a member, at its plenary
meeting on December 10, 1948, the right to life and liberty and all
other fundamental rights as applied to all human beings were
proclaimed. It was there resolved that "All human beings are born
free and equal in degree and rights" (Art. 1); that "Everyone is
entitled to all the rights and freedom set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, nationality or social origin,
property, birth, or other status" (Art. 2): that "Every one has the right
to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the Constitution or
by law" (Art. 8); that "No one shall be subjected to arbitrary arrest,
detention or exile" (Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court
"has the power to release from custody an alien who has been
detained an unreasonably long period of time by the Department of
Justice after it has become apparent that although a warrant for his
deportation has been issued, the warrant can not be effectuated;"
that "the theory on which the court is given the power to act is that
the warrant of deportation, not having been able to be executed,
is functus officio and the alien is being held without any authority of
law." The decision cited several cases which, it said, settled the
matter definitely in that jurisdiction, adding that the same result had
reached in innumerable cases elsewhere. The cases referred to
were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404;
Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin,
9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D.
Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46
F. Supp. 425.
The most recent case, as far as we have been able to find, was that
of Staniszewski vs. Watkins (1948), 90 Fed. Supp., 132, which is
nearly foursquare with the case at hand. In that case a stateless
person, formerly a Polish national, resident in the United States
since 1911 and many times serving as a seaman on American
vessels both in peace and in war, was ordered excluded from the
United States and detained at Ellis Island at the expense of the
steamship company, when he returned from a voyage on which he
had shipped from New York for one or more European ports and
return to the United States. The grounds for his exclusion were that
he had no passport or immigration visa, and that in 1937 had been
convicted of perjury because in certain documents he presented
himself to be an American citizen. Upon his application for release
on habeas corpus, the Court released him upon his own
recognizance. Judge Leibell, of the United States District Court for
the Southern District of New York, said in part:
When the return to the writ of habeas corpus came before this court,
I suggested that all interested parties . . . make an effort to arrange
to have the petitioner ship out of some country that he would receive
him as a resident. He is, a native-born Pole but the Polish Consul
has advised him in writing that he is no longer a Polish subject. This
Government does not claim that he is a Polish citizen. His attorney
says he is a stateless. The Government is willing that he go back to
the ship, but if he were sent back aboard a ship and sailed to the
Port (Cherbourg, France) from which he last sailed to the United
States, he would probably be denied permission to land. There is no
other country that would take him, without proper documents.
It seems to me that this is a genuine hardship case and that the
petitioner should be released from custody on proper terms. . . .
What is to be done with the petitioner? The government has had him
in custody almost seven months and practically admits it has no
place to send him out of this country. The steamship company,
which employed him as one of a group sent to the ship by the Union,
with proper seaman's papers issued by the United States Coast
Guard, is paying $3 a day for petitioner's board at Ellis Island. It is
no fault of the steamship company that petitioner is an inadmissible
alien as the immigration officials describe him. . . .
I intend to sustain the writ of habeas corpus and order the release of
the petitioner on his own recognizance. He will be required to inform
the immigration officials at Ellis Island by mail on the 15th of each
month, stating where he is employed and where he can be reached
by mail. If the government does succeed in arranging for petitioner's
deportation to a country that will be ready to receive him as a
resident, it may then advise the petitioner to that effect and arrange
for his deportation in the manner provided by law.
Although not binding upon this Court as a precedent, the case
aforecited affords a happy solution to the quandry in which the
parties here finds themselves, solution which we think is sensible,
sound and compatible with law and the Constitution. For this reason,
and since the Philippine law on immigration was patterned after or
copied from the American law and practice, we choose to follow and
adopt the reasoning and conclusions in the Staniszewski decision
with some modifications which, it is believed, are in consonance with
the prevailing conditions of peace and order in the Philippines.
It was said or insinuated at the hearing ofthe petition at bar, but not
alleged in the return, that the petitioner was engaged in subversive
activities, and fear was expressed that he might join or aid the
disloyal elements if allowed to be at large. Bearing in mind the
Government's allegation in its answer that "the herein petitioner was
brought to the Philippines by the Japanese forces," and the fact that
Japan is no longer at war with the United States or the Philippines
nor identified with the countries allied against these nations, the
possibility of the petitioner's entertaining or committing hostile acts
prejudicial to the interest and security of this country seems remote.
If we grant, for the sake of argument, that such a possibility exists,
still the petitioner's unduly prolonged detention would be
unwarranted by law and the Constitution, if the only purpose of the
detention be to eliminate a danger that is by no means actual,
present, or uncontrolable. After all, the Government is not impotent
to deal with or prevent any threat by such measure as that just
outlined. The thought eloquently expressed by Mr. Justice Jackson
of the United States Supreme Court in connection with the
appliccation for bail of ten Communists convicted by a lower court of
advocacy of violent overthrow of the United States Government is, in
principle, pertinent and may be availed of at this juncture. Said the
learned Jurist:
The Governmet's alternative contention is that defendants, by
misbehavior after conviction, have forfeited their claim to bail. Grave
public danger is said to result from what they may be expected to
do, in addition to what they have done since their conviction. If I
assume that defendants are disposed to commit every opportune
28

disloyal to act helpful to Communist countries, it is still difficult to
reconcile with traditional American law the jailing of persons by the
courts because of anticipated but as yet uncommitted crimes.
lmprisonment to protect society from predicted but unconsummated
offenses is so unprecedented in this country and so fraught with
danger of excesses and injustice that I am loath to resort it, even as
a discretionary judicial technique to supplement conviction of such
offenses as those of which defendants stand convicted.
But the right of every American to equal treatment before the law is
wrapped up in the same constitutional bundle with those of these
Communists. If an anger or disgust with these defendants we throw
out the bundle, we alsocast aside protection for the liberties of more
worthy critics who may be in opposition to the government of some
future day.
x x x x x x x x x1wphl.nt
If, however, I were to be wrong on all of these abstract or theoretical
matters of principle, there is a very practical aspect of this
application which must not be overlooked or underestimated that
is the disastrous effect on the reputation of American justice if I
should now send these men to jail and the full Court later decide that
their conviction is invalid. All experience with litigation teaches that
existence of a substantial question about a conviction implies a
more than negligible risk of reversal. Indeed this experience lies
back of our rule permitting and practice of allowing bail where such
questions exist, to avoid the hazard of unjustifiably imprisoning
persons with consequent reproach to our system of justice. If that is
prudent judicial practice in the ordinary case, how much more
important to avoid every chance of handing to the Communist world
such an ideological weapon as it would have if this country should
imprison this handful of Communist leaders on a conviction that our
highest Court would confess to be illegal. Risks, of course, are
involved in either granting or refusing bail. I am naive enough to
underestimate the troublemaking propensities of the defendants.
But, with the Department of Justice alert to the the dangers, the
worst they can accomplish in the short time it will take to end the
litigation is preferable to the possibility of national embarrassment
from a celebrated case of unjustified imprisonment of Communist
leaders. Under no circumstances must we permit their symbolization
of an evil force in the world to be hallowed and glorified by any
semblance of martyrdom. The way to avoid that risk is not to jail
these men until it is finally decided that they should stay jailed.
If that case is not comparable with ours on the issues presented, its
underlying principle is of universal application. In fact, its ratio
decidendi applies with greater force to the present petition, since the
right of accused to bail pending apppeal of his case, as in the case
of the ten Communists, depends upon the discretion of the court,
whereas the right to be enlarged before formal charges are instituted
is absolute. As already noted, not only are there no charges pending
against the petitioner, but the prospects of bringing any against him
are slim and remote.
Premises considered, the writ will issue commanding the
respondents to release the petitioner from custody upon these
terms: The petitioner shall be placed under the surveillance of the
immigration authorities or their agents in such form and manner as
may be deemed adequate to insure that he keep peace and be
available when the Government is ready to deport him. The
surveillance shall be reasonable and the question of reasonableness
shall be submitted to this Court or to the Court of First Instance of
Manila for decision in case of abuse. He shall also put up a bond for
the above purpose in the amount of P5,000 with sufficient surety or
sureties, which bond the Commissioner of Immigration is authorized
to exact by section 40 of Commonwealth Act No. 613.
No costs will be charged.

[G.R. No. 152154. July 15, 2003]
REPUBLIC OF THE PHILIPPINES, petitioner, vs. HONORABLE
SANDIGANBAYAN (SPECIAL FIRST DIVISION), FERDINAND E.
MARCOS (REPRESENTED BY HIS ESTATE/HEIRS: IMELDA R.
MARCOS, MARIA IMELDA [IMEE] MARCOS-MANOTOC,
FERDINAND R. MARCOS, JR. AND IRENE MARCOS-ARANETA)
AND IMELDA ROMUALDEZ MARCOS, respondents.
D E C I S I O N
CORONA, J .:
This is a petition for certiorari under Rule 65 of the Rules of Court
seeking to (1) set aside the Resolution dated January 31, 2002
issued by the Special First Division of the Sandiganbayan in Civil
Case No. 0141 entitled Republic of the Philippines vs. Ferdinand E.
Marcos, et. al., and (2) reinstate its earlier decision dated September
19, 2000 which forfeited in favor of petitioner Republic of the
Philippines (Republic) the amount held in escrow in the Philippine
National Bank (PNB) in the aggregate amount of
US$658,175,373.60 as of January 31, 2002.
BACKGROUND OF THE CASE
On December 17, 1991, petitioner Republic, through the Presidential
Commission on Good Government (PCGG), represented by the
Office of the Solicitor General (OSG), filed a petition for forfeiture
before the Sandiganbayan, docketed as Civil Case No. 0141
entitled Republic of the Philippines vs. Ferdinand E. Marcos,
represented by his Estate/Heirs and Imelda R. Marcos, pursuant to
RA 1379
[1]
in relation to Executive Order Nos. 1,
[2]
2,
[3]
14
[4]
and 14-
A.
[5]

In said case, petitioner sought the declaration of the aggregate
amount of US$356 million (now estimated to be more than US$658
million inclusive of interest) deposited in escrow in the PNB, as ill-
gotten wealth. The funds were previously held by the following five
account groups, using various foreign foundations in certain Swiss
banks:
(1) Azio-Verso-Vibur Foundation accounts;
(2) Xandy-Wintrop: Charis-Scolari-Valamo-Spinus- Avertina
Foundation accounts;
(3) Trinidad-Rayby-Palmy Foundation accounts;
(4) Rosalys-Aguamina Foundation accounts and
(5) Maler Foundation accounts.
In addition, the petition sought the forfeiture of US$25 million and
US$5 million in treasury notes which exceeded the Marcos couples
salaries, other lawful income as well as income from legitimately
acquired property. The treasury notes are frozen at the Central
Bank of the Philippines, now Bangko Sentral ng Pilipinas, by virtue
of the freeze order issued by the PCGG.
On October 18, 1993, respondents Imelda R. Marcos, Maria Imelda
M. Manotoc, Irene M. Araneta and Ferdinand R. Marcos, Jr. filed
their answer.
Before the case was set for pre-trial, a General Agreement and the
Supplemental Agreements
[6]
dated December 28, 1993 were
executed by the Marcos children and then PCGG Chairman
Magtanggol Gunigundo for a global settlement of the assets of the
Marcos family. Subsequently, respondent Marcos children filed a
motion dated December 7, 1995 for the approval of said agreements
and for the enforcement thereof.
The General Agreement/Supplemental Agreements sought to
identify, collate, cause the inventory of and distribute all assets
presumed to be owned by the Marcos family under the conditions
contained therein. The aforementioned General Agreement
specified in one of its premises or whereas clauses the fact that
petitioner obtained a judgment from the Swiss Federal Tribunal on
December 21, 1990, that the Three Hundred Fifty-six Million U.S.
dollars (US$356 million) belongs in principle to the Republic of the
Philippines provided certain conditionalities are met x x x. The said
decision of the Swiss Federal Supreme Court affirmed the decision
of Zurich District Attorney Peter Consandey, granting petitioners
request for legal assistance.
[7]
Consandey declared the various
deposits in the name of the enumerated foundations to be of illegal
provenance and ordered that they be frozen to await the final verdict
in favor of the parties entitled to restitution.
Hearings were conducted by the Sandiganbayan on the motion to
approve the General/Supplemental Agreements. Respondent
29

Ferdinand, Jr. was presented as witness for the purpose of
establishing the partial implementation of said agreements.
On October 18, 1996, petitioner filed a motion for summary
judgment and/or judgment on the pleadings. Respondent Mrs.
Marcos filed her opposition thereto which was later adopted by
respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand, Jr.
In its resolution dated November 20, 1997, the Sandiganbayan
denied petitioners motion for summary judgment and/or judgment
on the pleadings on the ground that the motion to approve the
compromise agreement (took) precedence over the motion for
summary judgment.
Respondent Mrs. Marcos filed a manifestation on May 26, 1998
claiming she was not a party to the motion for approval of the
Compromise Agreement and that she owned 90% of the funds with
the remaining 10% belonging to the Marcos estate.
Meanwhile, on August 10, 1995, petitioner filed with the District
Attorney in Zurich, Switzerland, an additional request for the
immediate transfer of the deposits to an escrow account in the
PNB. The request was granted. On appeal by the Marcoses, the
Swiss Federal Supreme Court, in a decision dated December 10,
1997, upheld the ruling of the District Attorney of Zurich granting the
request for the transfer of the funds. In 1998, the funds were
remitted to the Philippines in escrow. Subsequently, respondent
Marcos children moved that the funds be placed in custodia
legis because the deposit in escrow in the PNB was allegedly in
danger of dissipation by petitioner. The Sandiganbayan, in its
resolution dated September 8, 1998, granted the motion.
After the pre-trial and the issuance of the pre-trial order and
supplemental pre-trial order dated October 28, 1999 and January
21, 2000, respectively, the case was set for trial. After several
resettings, petitioner, on March 10, 2000, filed another motion for
summary judgment pertaining to the forfeiture of the US$356 million,
based on the following grounds:
I
THE ESSENTIAL FACTS WHICH WARRANT THE FORFEITURE
OF THE FUNDS SUBJECT OF THE PETITION UNDER R.A. NO.
1379 ARE ADMITTED BY RESPONDENTS IN THEIR PLEADINGS
AND OTHER SUBMISSIONS MADE IN THE COURSE OF THE
PROCEEDING.
II
RESPONDENTS ADMISSION MADE DURING THE PRE-TRIAL
THAT THEY DO NOT HAVE ANY INTEREST OR OWNERSHIP
OVER THE FUNDS SUBJECT OF THE ACTION FOR
FORFEITURE TENDERS NO GENUINE ISSUE OR
CONTROVERSY AS TO ANY MATERIAL FACT IN THE PRESENT
ACTION, THUS WARRANTING THE RENDITION OF SUMMARY
JUDGMENT.
[8]

Petitioner contended that, after the pre-trial conference, certain facts
were established, warranting a summary judgment on the funds
sought to be forfeited.
Respondent Mrs. Marcos filed her opposition to the petitioners
motion for summary judgment, which opposition was later adopted
by her co-respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand,
Jr.
On March 24, 2000, a hearing on the motion for summary judgment
was conducted.
In a decision
[9]
dated September 19, 2000, the Sandiganbayan
granted petitioners motion for summary judgment:
CONCLUSION
There is no issue of fact which calls for the presentation of evidence.
The Motion for Summary Judgment is hereby granted.
The Swiss deposits which were transmitted to and now held in
escrow at the PNB are deemed unlawfully acquired as ill-gotten
wealth.
DISPOSITION
WHEREFORE, judgment is hereby rendered in favor of the Republic
of the Philippines and against the respondents, declaring the Swiss
deposits which were transferred to and now deposited in escrow at
the Philippine National Bank in the total aggregate value equivalent
to US$627,608,544.95 as of August 31, 2000 together with the
increments thereof forfeited in favor of the State.
[10]

Respondent Mrs. Marcos filed a motion for reconsideration dated
September 26, 2000. Likewise, Mrs. Manotoc and Ferdinand, Jr.
filed their own motion for reconsideration dated October 5, 2000.
Mrs. Araneta filed a manifestation dated October 4, 2000 adopting
the motion for reconsideration of Mrs. Marcos, Mrs. Manotoc and
Ferdinand, Jr.
Subsequently, petitioner filed its opposition thereto.
In a resolution
[11]
dated January 31, 2002, the Sandiganbayan
reversed its September 19, 2000 decision, thus denying petitioners
motion for summary judgment:
CONCLUSION
In sum, the evidence offered for summary judgment of the case did
not prove that the money in the Swiss Banks belonged to the
Marcos spouses because no legal proof exists in the record as to
the ownership by the Marcoses of the funds in escrow from the
Swiss Banks.
The basis for the forfeiture in favor of the government cannot be
deemed to have been established and our judgment thereon,
perforce, must also have been without basis.
WHEREFORE, the decision of this Court dated September 19, 2000
is reconsidered and set aside, and this case is now being set for
further proceedings.
[12]

Hence, the instant petition. In filing the same, petitioner argues that
the Sandiganbayan, in reversing its September 19, 2000 decision,
committed grave abuse of discretion amounting to lack or excess of
jurisdiction considering that --
I
PETITIONER WAS ABLE TO PROVE ITS CASE IN ACCORDANCE
WITH THE REQUISITES OF SECTIONS 2 AND 3 OF R.A. NO.
1379:
A. PRIVATE RESPONDENTS CATEGORICALLY ADMITTED
NOT ONLY THE PERSONAL CIRCUMSTANCES OF FERDINAND
E. MARCOS AND IMELDA R. MARCOS AS PUBLIC OFFICIALS
BUT ALSO THE EXTENT OF THEIR SALARIES AS SUCH PUBLIC
OFFICIALS, WHO UNDER THE CONSTITUTION, WERE
PROHIBITED FROM ENGAGING IN THE MANAGEMENT OF
FOUNDATIONS.
B. PRIVATE RESPONDENTS ALSO ADMITTED THE
EXISTENCE OF THE SWISS DEPOSITS AND THEIR
OWNERSHIP THEREOF:
1. ADMISSIONS IN PRIVATE RESPONDENTS ANSWER;
2. ADMISSION IN THE GENERAL / SUPPLEMENTAL
AGREEMENTS THEY SIGNED AND SOUGHT TO IMPLEMENT;
3. ADMISSION IN A MANIFESTATION OF PRIVATE
RESPONDENT IMELDA R. MARCOS AND IN THE MOTION TO
PLACE THE RES IN CUSTODIA LEGIS; AND
4. ADMISSION IN THE UNDERTAKING TO PAY THE
HUMAN RIGHTS VICTIMS.
C. PETITIONER HAS PROVED THE EXTENT OF THE
LEGITIMATE INCOME OF FERDINAND E. MARCOS AND IMELDA
R. MARCOS AS PUBLIC OFFICIALS.
D. PETITIONER HAS ESTABLISHED A PRIMA
FACIE PRESUMPTION OF UNLAWFULLY ACQUIRED WEALTH.
II
SUMMARY JUDGMENT IS PROPER SINCE PRIVATE
RESPONDENTS HAVE NOT RAISED ANY GENUINE ISSUE OF
FACT CONSIDERING THAT:
A. PRIVATE RESPONDENTS DEFENSE THAT SWISS
DEPOSITS WERE LAWFULLY ACQUIRED DOES NOT ONLY FAIL
TO TENDER AN ISSUE BUT IS CLEARLY A SHAM; AND
B. IN SUBSEQUENTLY DISCLAIMING OWNERSHIP OF THE
SWISS DEPOSITS, PRIVATE RESPONDENTS ABANDONED
THEIR SHAM DEFENSE OF LEGITIMATE ACQUISITION, AND
THIS FURTHER JUSTIFIED THE RENDITION OF A SUMMARY
JUDGMENT.
III
THE FOREIGN FOUNDATIONS NEED NOT BE IMPLEADED.
30

IV
THE HONORABLE PRESIDING JUSTICE COMMITTED GRAVE
ABUSE OF DISCRETION IN REVERSING HIMSELF ON THE
GROUND THAT ORIGINAL COPIES OF THE AUTHENTICATED
SWISS DECISIONS AND THEIR AUTHENTICATED
TRANSLATIONS HAVE NOT BEEN SUBMITTED TO THE
COURT, WHEN EARLIER THE SANDIGANBAYAN HAS QUOTED
EXTENSIVELY A PORTION OF THE TRANSLATION OF ONE OF
THESE SWISS DECISIONS IN HIS PONENCIA DATED JULY 29,
1999 WHEN IT DENIED THE MOTION TO RELEASE ONE
HUNDRED FIFTY MILLION US DOLLARS ($150,000,000.00) TO
THE HUMAN RIGHTS VICTIMS.
V
PRIVATE RESPONDENTS ARE DEEMED TO HAVE WAIVED
THEIR OBJECTION TO THE AUTHENTICITY OF THE SWISS
FEDERAL SUPREME COURT DECISIONS.
[13]

Petitioner, in the main, asserts that nowhere in the respondents
motions for reconsideration and supplemental motion for
reconsideration were the authenticity, accuracy and admissibility of
the Swiss decisions ever challenged. Otherwise stated, it was
incorrect for the Sandiganbayan to use the issue of lack of
authenticated translations of the decisions of the Swiss Federal
Supreme Court as the basis for reversing itself because
respondents themselves never raised this issue in their motions for
reconsideration and supplemental motion for reconsideration.
Furthermore, this particular issue relating to the translation of the
Swiss court decisions could not be resurrected anymore because
said decisions had been previously utilized by the Sandiganbayan
itself in resolving a decisive issue before it.
Petitioner faults the Sandiganbayan for questioning the non-
production of the authenticated translations of the Swiss Federal
Supreme Court decisions as this was a marginal and technical
matter that did not diminish by any measure the conclusiveness and
strength of what had been proven and admitted before the
Sandiganbayan, that is, that the funds deposited by the Marcoses
constituted ill-gotten wealth and thus belonged to the Filipino people.
In compliance with the order of this Court, Mrs. Marcos filed her
comment to the petition on May 22, 2002. After several motions for
extension which were all granted, the comment of Mrs. Manotoc and
Ferdinand, Jr. and the separate comment of Mrs. Araneta were filed
on May 27, 2002.
Mrs. Marcos asserts that the petition should be denied on the
following grounds:
A.
PETITIONER HAS A PLAIN, SPEEDY, AND ADEQUATE REMEDY
AT THE SANDIGANBAYAN.
B.
THE SANDIGANBAYAN DID NOT ABUSE ITS DISCRETION IN
SETTING THE CASE FOR FURTHER PROCEEDINGS.
[14]

Mrs. Marcos contends that petitioner has a plain, speedy and
adequate remedy in the ordinary course of law in view of the
resolution of the Sandiganbayan dated January 31, 2000 directing
petitioner to submit the authenticated translations of the Swiss
decisions. Instead of availing of said remedy, petitioner now
elevates the matter to this Court. According to Mrs. Marcos, a
petition for certiorari which does not comply with the requirements of
the rules may be dismissed. Since petitioner has a plain, speedy
and adequate remedy, that is, to proceed to trial and submit
authenticated translations of the Swiss decisions, its petition before
this Court must be dismissed. Corollarily, the Sandiganbayans
ruling to set the case for further proceedings cannot and should not
be considered a capricious and whimsical exercise of judgment.
Likewise, Mrs. Manotoc and Ferdinand, Jr., in their comment,
prayed for the dismissal of the petition on the grounds that:
(A)
BY THE TIME PETITIONER FILED ITS MOTION FOR SUMMARY
JUDGMENT ON 10 MARCH 2000, IT WAS ALREADY BARRED
FROM DOING SO.
(1) The Motion for Summary Judgment was based on private
respondents Answer and other documents that had long been in the
records of the case. Thus, by the time the Motion was filed on 10
March 2000, estoppel by laches had already set in against
petitioner.
(2) By its positive acts and express admissions prior to filing the
Motion for Summary Judgment on 10 March 1990, petitioner had
legally bound itself to go to trial on the basis of existing issues. Thus,
it clearly waived whatever right it had to move for summary
judgment.
(B)
EVEN ASSUMING THAT PETITIONER WAS NOT LEGALLY
BARRED FROM FILING THE MOTION FOR SUMMARY
JUDGMENT, THE SANDIGANBAYAN IS CORRECT IN RULING
THAT PETITIONER HAS NOT YET ESTABLISHED A PRIMA
FACIE CASE FOR THE FORFEITURE OF THE SWISS FUNDS.
(1) Republic Act No. 1379, the applicable law, is a penal statute.
As such, its provisions, particularly the essential elements stated in
section 3 thereof, are mandatory in nature. These should be strictly
construed against petitioner and liberally in favor of private
respondents.
(2) Petitioner has failed to establish the third and fourth essential
elements in Section 3 of R.A. 1379 with respect to the identification,
ownership, and approximate amount of the property which the
Marcos couple allegedly acquired during their incumbency.
(a) Petitioner has failed to prove that the Marcos couple
acquired or own the Swiss funds.
(b) Even assuming, for the sake of argument, that the fact of
acquisition has been proven, petitioner has categorically admitted
that it has no evidence showing how much of the Swiss funds was
acquired during the incumbency of the Marcos couple from 31
December 1965 to 25 February 1986.
(3) In contravention of the essential element stated in Section 3
(e) of R.A. 1379, petitioner has failed to establish the other proper
earnings and income from legitimately acquired property of the
Marcos couple over and above their government salaries.
(4) Since petitioner failed to prove the three essential elements
provided in paragraphs (c)
[15]
(d),
[16]
and (e)
[17]
of Section 3, R.A.
1379, the inescapable conclusion is that the prima facie presumption
of unlawful acquisition of the Swiss funds has not yet attached.
There can, therefore, be no premature forfeiture of the funds.
(C)
IT WAS ONLY BY ARBITRARILY ISOLATING AND THEN TAKING
CERTAIN STATEMENTS MADE BY PRIVATE RESPONDENTS
OUT OF CONTEXT THAT PETITIONER WAS ABLE TO TREAT
THESE AS JUDICIAL ADMISSIONS SUFFICIENT TO
ESTABLISH A PRIMA FACIE AND THEREAFTER A CONCLUSIVE
CASE TO JUSTIFY THE FORFEITURE OF THE SWISS FUNDS.
(1) Under Section 27, Rule 130 of the Rules of Court, the General
and Supplemental Agreements, as well as the other written and
testimonial statements submitted in relation thereto, are expressly
barred from being admissible in evidence against private
respondents.
(2) Had petitioner bothered to weigh the alleged admissions
together with the other statements on record, there would be a
demonstrable showing that no such judicial admissions were made
by private respondents.
(D)
SINCE PETITIONER HAS NOT (YET) PROVEN ALL THE
ESSENTIAL ELEMENTS TO ESTABLISH A PRIMA FACIE CASE
FOR FORFEITURE, AND PRIVATE RESPONDENTS HAVE NOT
MADE ANY JUDICIAL ADMISSION THAT WOULD HAVE FREED
IT FROM ITS BURDEN OF PROOF, THE SANDIGANBAYAN DID
NOT COMMIT GRAVE ABUSE OF DISCRETION IN DENYING THE
MOTION FOR SUMMARY JUDGMENT. CERTIORARI,
THEREFORE, DOES NOT LIE, ESPECIALLY AS THIS COURT IS
NOT A TRIER OF FACTS.
[18]

For her part, Mrs. Araneta, in her comment to the petition, claims
that obviously petitioner is unable to comply with a very plain
31

requirement of respondent Sandiganbayan. The instant petition is
allegedly an attempt to elevate to this Court matters, issues and
incidents which should be properly threshed out at the
Sandiganbayan. To respondent Mrs. Araneta, all other matters,
save that pertaining to the authentication of the translated Swiss
Court decisions, are irrelevant and impertinent as far as this Court is
concerned. Respondent Mrs. Araneta manifests that she is as
eager as respondent Sandiganbayan or any interested person to
have the Swiss Court decisions officially translated in our known
language. She says the authenticated official English version of the
Swiss Court decisions should be presented. This should stop all
speculations on what indeed is contained therein. Thus, respondent
Mrs. Araneta prays that the petition be denied for lack of merit and
for raising matters which, in elaborated fashion, are impertinent and
improper before this Court.
PROPRIETY OF PETITIONERS
ACTION FOR CERTIORARI
But before this Court discusses the more relevant issues, the
question regarding the propriety of petitioner Republic's action for
certiorari under Rule 65
[19]
of the 1997 Rules of Civil Procedure
assailing the Sandiganbayan Resolution dated January 21, 2002
should be threshed out.
At the outset, we would like to stress that we are treating this case
as an exception to the general rule governing petitions for certiorari.
Normally, decisions of the Sandiganbayan are brought before this
Court under Rule 45, not Rule 65.
[20]
But where the case is
undeniably ingrained with immense public interest, public policy and
deep historical repercussions, certiorari is allowed notwithstanding
the existence and availability of the remedy of appeal.
[21]

One of the foremost concerns of the Aquino Government
in February 1986 was the recovery of the unexplained or ill-gotten
wealth reputedly amassed by former President and Mrs. Ferdinand
E. Marcos, their relatives, friends and business associates. Thus,
the very first Executive Order (EO) issued by then President
Corazon Aquino upon her assumption to office after the ouster of the
Marcoses was EO No. 1, issued on February 28, 1986. It created
the Presidential Commission on Good Government (PCGG) and
charged it with the task of assisting the President in the "recovery of
all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including
the takeover or sequestration of all business enterprises and entities
owned or controlled by them during his administration, directly or
through nominees, by taking undue advantage of their public office
and/or using their powers, authority, influence, connections or
relationship." The urgency of this undertaking was tersely described
by this Court in Republic vs. Lobregat
[22]
:
surely x x x an enterprise "of great pith and moment"; it was
attended by "great expectations"; it was initiated not only out of
considerations of simple justice but also out of sheer necessity - the
national coffers were empty, or nearly so.
In all the alleged ill-gotten wealth cases filed by the PCGG, this
Court has seen fit to set aside technicalities and formalities that
merely serve to delay or impede judicious resolution. This Court
prefers to have such cases resolved on the merits at the
Sandiganbayan. But substantial justice to the Filipino people and to
all parties concerned, not mere legalisms or perfection of form,
should now be relentlessly and firmly pursued. Almost two decades
have passed since the government initiated its search for and
reversion of such ill-gotten wealth. The definitive resolution of such
cases on the merits is thus long overdue. If there is proof of illegal
acquisition, accumulation, misappropriation, fraud or illicit conduct,
let it be brought out now. Let the ownership of these funds and other
assets be finally determined and resolved with dispatch, free from all
the delaying technicalities and annoying procedural sidetracks.
[23]

We thus take cognizance of this case and settle with finality all the
issues therein.
ISSUES BEFORE THIS COURT
The crucial issues which this Court must resolve are: (1) whether or
not respondents raised any genuine issue of fact which would either
justify or negate summary judgment; and (2) whether or not
petitioner Republic was able to prove its case for forfeiture in
accordance with Sections 2 and 3 of RA 1379.
(1) THE PROPRIETY OF SUMMARY JUDGMENT
We hold that respondent Marcoses failed to raise any genuine issue
of fact in their pleadings. Thus, on motion of petitioner Republic,
summary judgment should take place as a matter of right.
In the early case of Auman vs. Estenzo
[24]
, summary judgment was
described as a judgment which a court may render before trial but
after both parties have pleaded. It is ordered by the court upon
application by one party, supported by affidavits, depositions or
other documents, with notice upon the adverse party who may in
turn file an opposition supported also by affidavits, depositions or
other documents. This is after the court summarily hears both
parties with their respective proofs and finds that there is no genuine
issue between them. Summary judgment is sanctioned in this
jurisdiction by Section 1, Rule 35 of the 1997 Rules of Civil
Procedure:
SECTION 1. Summary judgment for claimant.- A party seeking to
recover upon a claim, counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the pleading in answer
thereto has been served, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor upon
all or any part thereof.
[25]

Summary judgment is proper when there is clearly no genuine issue
as to any material fact in the action.
[26]
The theory of summary
judgment is that, although an answer may on its face appear to
tender issues requiring trial, if it is demonstrated by affidavits,
depositions or admissions that those issues are not genuine but
sham or fictitious, the Court is justified in dispensing with the trial
and rendering summary judgment for petitioner Republic.
The Solicitor General made a very thorough presentation of its case
for forfeiture:
x x x
4. Respondent Ferdinand E. Marcos (now deceased and
represented by his Estate/Heirs) was a public officer for several
decades continuously and without interruption as Congressman,
Senator, Senate President and President of the Republic of the
Philippines from December 31, 1965 up to his ouster by direct action
of the people of EDSA on February 22-25, 1986.
5. Respondent Imelda Romualdez Marcos (Imelda, for short) the
former First Lady who ruled with FM during the 14-year martial law
regime, occupied the position of Minister of Human Settlements from
June 1976 up to the peaceful revolution in February 22-25, 1986.
She likewise served once as a member of the Interim Batasang
Pambansa during the early years of martial law from 1978 to 1984
and as Metro Manila Governor in concurrent capacity as Minister of
Human Settlements. x x x
xxx xxx xxx
11. At the outset, however, it must be pointed out that based on the
Official Report of the Minister of Budget, the total salaries of former
President Marcos as President form 1966 to 1976 was P60,000 a
year and from 1977 to 1985, P100,000 a year; while that of the
former First Lady, Imelda R. Marcos, as Minister of Human
Settlements from June 1976 to February 22-25, 1986 was P75,000
a year xxx.
ANALYSIS OF RESPONDENTS
LEGITIMATE INCOME
x x x
12. Based on available documents, the ITRs of the Marcoses for
the years 1965-1975 were filed under Tax Identification No. 1365-
055-1. For the years 1976 until 1984, the returns were filed under
Tax Identification No. M 6221-J 1117-A-9.
13. The data contained in the ITRs and Balance Sheet filed by the
Marcoses are summarized and attached to the reports in the
following schedules:
Schedule A:
32

Schedule of Income (Annex T hereof);
Schedule B:
Schedule of Income Tax Paid (Annex T-1 hereof);
Schedule C:
Schedule of Net Disposable Income (Annex T-2 hereof);
Schedule D:
Schedule of Networth Analysis (Annex T-3 hereof).
14. As summarized in Schedule A (Annex T hereof), the Marcoses
reported P16,408,442.00 or US$2,414,484.91 in total income over a
period of 20 years from 1965 to 1984. The sources of income are as
follows:
Official Salaries - P 2,627,581.00 - 16.01%
Legal Practice - 11,109,836.00 - 67.71%
Farm Income - 149,700.00 - .91%
Others - 2,521,325.00 - 15.37%
Total P16,408,442.00 - 100.00%
15. FMs official salary pertains to his compensation as Senate
President in 1965 in the amount of P15,935.00 and P1,420,000.00
as President of the Philippines during the period 1966 until 1984. On
the other hand, Imelda reported salaries and allowances only for the
years 1979 to 1984 in the amount of P1,191,646.00. The records
indicate that the reported income came from her salary from the
Ministry of Human Settlements and allowances from Food Terminal,
Inc., National Home Mortgage Finance Corporation, National Food
Authority Council, Light Rail Transit Authority and Home
Development Mutual Fund.
16. Of the P11,109,836.00 in reported income from legal practice,
the amount of P10,649,836.00 or 96% represents receivables from
prior years during the period 1967 up to 1984.
17. In the guise of reporting income using the cash method under
Section 38 of the National Internal Revenue Code, FM made it
appear that he had an extremely profitable legal practice before he
became a President (FM being barred by law from practicing his law
profession during his entire presidency) and that, incredibly, he was
still receiving payments almost 20 years after. The only problem is
that in his Balance Sheet attached to his 1965 ITR immediately
preceeding his ascendancy to the presidency he did not show any
Receivables from client at all, much less the P10,65-M that he
decided to later recognize as income. There are no documents
showing any withholding tax certificates. Likewise, there is nothing
on record that will show any known Marcos client as he has no
known law office. As previously stated, his networth was a
mere P120,000.00 in December, 1965. The joint income tax returns
of FM and Imelda cannot, therefore, conceal the skeletons of their
kleptocracy.
18. FM reported a total of P2,521,325.00 as Other Income for the
years 1972 up to 1976 which he referred to in his return as
Miscellaneous Items and Various Corporations. There is no
indication of any payor of the dividends or earnings.
19. Spouses Ferdinand and Imelda did not declare any income from
any deposits and placements which are subject to a 5% withholding
tax. The Bureau of Internal Revenue attested that after a diligent
search of pertinent records on file with the Records Division, they
did not find any records involving the tax transactions of spouses
Ferdinand and Imelda in Revenue Region No. 1, Baguio City,
Revenue Region No.4A, Manila, Revenue Region No. 4B1, Quezon
City and Revenue No. 8, Tacloban, Leyte. Likewise, the Office of
the Revenue Collector of Batac. Further, BIR attested that no
records were found on any filing of capital gains tax return involving
spouses FM and Imelda covering the years 1960 to 1965.
20. In Schedule B, the taxable reported income over the twenty-
year period was P14,463,595.00 which represents 88% of the gross
income. The Marcoses paid income taxes totaling P8,233,296.00 or
US$1,220,667.59. The business expenses in the amount
of P861,748.00 represent expenses incurred for subscription,
postage, stationeries and contributions while the other deductions in
the amount of P567,097.00 represents interest charges, medicare
fees, taxes and licenses. The total deductions in the amount
of P1,994,845.00 represents 12% of the total gross income.
21. In Schedule C, the net cumulative disposable income amounts
to P6,756,301.00 or US$980,709.77. This is the amount that
represents that portion of the Marcoses income that is free for
consumption, savings and investments. The amount is arrived at by
adding back to the net income after tax the personal and additional
exemptions for the years 1965-1984, as well as the tax-exempt
salary of the President for the years 1966 until 1972.
22. Finally, the networth analysis in Schedule D, represents the
total accumulated networth of spouses, Ferdinand and
Imelda. Respondents Balance Sheet attached to their 1965 ITR,
covering the year immediately preceding their ascendancy to the
presidency, indicates an ending networth of P120,000.00 which FM
declared as Library and Miscellaneous assets. In computing for the
networth, the income approach was utilized. Under this approach,
the beginning capital is increased or decreased, as the case may
be, depending upon the income earned or loss
incurred. Computations establish the total networth of spouses
Ferdinand and Imelda, for the years 1965 until 1984 in the total
amount of US$957,487.75, assuming the income from legal practice
is real and valid x x x.
G. THE SECRET MARCOS DEPOSITS
IN SWISS BANKS
23. The following presentation very clearly and
overwhelmingly show in detail how both respondents clandestinely
stashed away the countrys wealth to Switzerland and hid the same
under layers upon layers of foundations and other corporate entities
to prevent its detection. Through their dummies/nominees, fronts or
agents who formed those foundations or corporate entities, they
opened and maintained numerous bank accounts. But due to the
difficulty if not the impossibility of detecting and documenting all
those secret accounts as well as the enormity of the deposits therein
hidden, the following presentation is confined to five identified
accounts groups, with balances amounting to about $356-M with a
reservation for the filing of a supplemental or separate forfeiture
complaint should the need arise.
H. THE AZIO-VERSO-VIBUR
FOUNDATION ACCOUNTS
24. On June 11, 1971, Ferdinand Marcos issued a written order to
Dr. Theo Bertheau, legal counsel of Schweizeresche Kreditanstalt or
SKA, also known as Swiss Credit Bank, for him to establish
the AZIO Foundation. On the same date, Marcos executed a power
of attorney in favor of Roberto S. Benedicto empowering him to
transact business in behalf of the said foundation. Pursuant to the
said Marcos mandate, AZIO Foundation was formed on June 21,
1971 in Vaduz. Walter Fessler and Ernst Scheller, also of SKA
Legal Service, and Dr. Helmuth Merling from Schaan were
designated as members of the Board of Trustees of the said
foundation. Ferdinand Marcos was named first beneficiary and the
Marcos Foundation, Inc. was second beneficiary. On November 12,
1971, FM again issued another written order naming Austrahil PTY
Ltd. In Sydney, Australia, as the foundations first and sole
beneficiary. This was recorded on December 14, 1971.
25. In an undated instrument, Marcos changed the first and sole
beneficiary to CHARIS FOUNDATION. This change was recorded
on December 4, 1972.
26. On August 29, 1978, the AZIO FOUNDATION was renamed to
VERSO FOUNDATION. The Board of Trustees remained the
same. On March 11, 1981, Marcos issued a written directive to
liquidated VERSO FOUNDATION and to transfer all its assets to
account of FIDES TRUST COMPANY at Bank Hofman in Zurich
under the account Reference OSER. The Board of Trustees
decided to dissolve the foundation on June 25, 1981.
27. In an apparent maneuver to bury further the secret deposits
beneath the thick layers of corporate entities, FM effected the
establishment of VIBUR FOUNDATION on May 13, 1981 in
Vaduz. Atty. Ivo Beck and Limag Management, a wholly-owned
subsidiary of Fides Trust, were designated as members of the Board
of Trustees. The account was officially opened with SKA on
September 10, 1981. The beneficial owner was not made known to
33

the bank since Fides Trust Company acted as fiduciary. However,
comparison of the listing of the securities in the safe deposit register
of the VERSO FOUNDATION as of February 27, 1981 with that of
VIBUR FOUNDATION as of December 31, 1981 readily reveals
that exactly the same securities were listed.
28. Under the foregoing circumstances, it is certain that the VIBUR
FOUNDATION is the beneficial successor of VERSO
FOUNDATION.
29. On March 18, 1986, the Marcos-designated Board of Trustees
decided to liquidate VIBUR FOUNDATION. A notice of such
liquidation was sent to the Office of the Public Register on March 21,
1986. However, the bank accounts and respective balances of the
said VIBUR FOUNDATION remained with SKA.Apparently, the
liquidation was an attempt by the Marcoses to transfer the
foundations funds to another account or bank but this was
prevented by the timely freeze order issued by the Swiss
authorities. One of the latest documents obtained by the
PCGG from the Swiss authorities is a declaration signed by Dr. Ivo
Beck (the trustee) stating that the beneficial owner of VIBUR
FOUNDATION is Ferdinand E. Marcos. Another document signed
by G. Raber of SKA shows that VIBUR FOUNDATION is owned by
the Marcos Familie
30. As of December 31, 1989, the balance of the bank accounts of
VIBUR FOUNDATION with SKA, Zurich, under the General Account
No. 469857 totaled $3,597,544.00
I. XANDY-WINTROP: CHARIS-SCOLARI-
VALAMO-SPINUS-AVERTINA
FOUNDATION ACCOUNTS
31. This is the most intricate and complicated account group. As
the Flow Chart hereof shows, two (2) groups under the foundation
organized by Marcos dummies/nominees for FMs benefit,
eventually joined together and became one (1) account group under
the AVERTINA FOUNDATION for the benefit of both FM and
Imelda. This is the biggest group from where the $50-M investment
fund of the Marcoses was drawn when they bought the Central
Banks dollar-denominated treasury notes with high-yielding
interests.
32. On March 20, 1968, after his second year in the presidency,
Marcos opened bank accounts with SKA using an alias
or pseudonym WILLIAM SAUNDERS, apparently to hide his true
identity. The next day, March 21, 1968, his First Lady, Mrs. Imelda
Marcos also opened her own bank accounts with the same bank
using an American-sounding alias, JANE RYAN. Found among the
voluminous documents in Malacaang shortly after they fled to
Hawaii in haste that fateful night of February 25, 1986, were
accomplished forms for Declaration/Specimen Signatures
submitted by the Marcos couple. Under the caption signature(s)
Ferdinand and Imelda signed their real names as well as their
respective aliases underneath. These accounts were actively
operated and maintained by the Marcoses for about two (2) years
until their closure sometime in February, 1970 and the balances
transferred to XANDY FOUNDATION.
33. The XANDY FOUNDATION was established on March 3, 1970
in Vaduz. C.W. Fessler, C. Souviron and E. Scheller were named as
members of the Board of Trustees.
34. FM and Imelda issued the written mandate to establish the
foundation to Markus Geel of SKA on March 3, 1970. In the
handwritten Regulations signed by the Marcos couple as well as in
the type-written Regulations signed by Markus Geel both dated
February 13, 1970, the Marcos spouses were named the first
beneficiaries, the surviving spouse as the second beneficiary and
the Marcos children Imee, Ferdinand, Jr. (Bongbong) and Irene
as equal third beneficiaries.
35. The XANDY FOUNDATION was renamed WINTROP
FOUNDATION on August 29, 1978. The Board of Trustees
remained the same at the outset. However, on March 27, 1980,
Souviron was replaced by Dr. Peter Ritter. On March 10. 1981,
Ferdinand and Imelda Marcos issued a written order to the Board of
Wintrop to liquidate the foundation and transfer all its assets to Bank
Hofmann in Zurich in favor of FIDES TRUST COMPANY. Later,
WINTROP FOUNDATION was dissolved.
36. The AVERTINA FOUNDATION was established on May 13,
1981 in Vaduz with Atty. Ivo Beck and Limag Management, a
wholly-owned subsidiary of FIDES TRUST CO., as members of the
Board of Trustees. Two (2) account categories, namely: CAR and
NES, were opened on September 10, 1981. The beneficial owner of
AVERTINA was not made known to the bank since the FIDES
TRUST CO. acted as fiduciary. However, the securities listed in the
safe deposit register of WINTROP FOUNDATION Category R as of
December 31, 1980 were the same as those listed in the register of
AVERTINA FOUNDATION Category CAR as of December 31, 1981.
Likewise, the securities listed in the safe deposit register of
WINTROP FOUNDATION Category S as of December 31, 1980
were the same as those listed in the register of Avertina Category
NES as of December 31, 1981.Under the circumstances, it is certain
that the beneficial successor of WINTROP FOUNDATION is
AVERTINA FOUNDATION. The balance of Category CAR as of
December 31, 1989 amounted to US$231,366,894.00 while that of
Category NES as of 12-31-83 was US$8,647,190.00. Latest
documents received from Swiss authorities included a declaration
signed by IVO Beck stating that the beneficial owners of AVERTINA
FOUNDATION are FM and Imelda. Another document signed by G.
Raber of SKA indicates that Avertina Foundation is owned by the
Marcos Families.
37. The other groups of foundations that eventually joined
AVERTINA were also established by FM through his dummies,
which started with the CHARIS FOUNDATION.
38. The CHARIS FOUNDATION was established in VADUZ on
December 27, 1971. Walter Fessler and Ernst Scheller
of SKA and Dr. Peter Ritter were named as directors. Dr. Theo
Bertheau, SKA legal counsel, acted as founding director in behalf of
FM by virtue of the mandate and agreement dated November 12,
1971. FM himself was named the first beneficiary and Xandy
Foundation as second beneficiary in accordance with the
handwritten instructions of FM on November 12, 1971 and the
Regulations. FM gave a power of attorney to Roberto S. Benedicto
on February 15, 1972 to act in his behalf with regard to Charis
Foundation.
39. On December 13, 1974, Charis Foundation was renamed
Scolari Foundation but the directors remained the same. On March
11, 1981 FM ordered in writing that the Valamo Foundation be
liquidated and all its assets be transferred to Bank Hofmann, AG in
favor of Fides Trust Company under the account Reference
OMAL. The Board of Directors decided on the immediate
dissolution of Valamo Foundation on June 25, 1981.
40 The SPINUS FOUNDATION was established on May 13, 1981
in Vaduz with Atty. Ivo Beck and Limag Management, a wholly-
owned subsidiary of Fides Trust Co., as members of the
Foundations Board of Directors. The account was officially opened
with SKA on September 10, 1981. The beneficial owner of the
foundation was not made known to the bank since Fides Trust Co.
acted as fiduciary. However, the list of securities in the safe deposit
register of Valamo Foundation as of December 31, 1980 are
practically the same with those listed in the safe deposit register of
Spinus Foundation as of December 31, 1981. Under the
circumstances, it is certain that the Spinus Foundation is the
beneficial successor of the Valamo Foundation.
41. On September 6, 1982, there was a written instruction from
Spinus Foundation to SKA to close its Swiss Franc account and
transfer the balance to Avertina Foundation. In July/August, 1982,
several transfers from the foundations German marks and US dollar
accounts were made to Avertina Category CAR totaling DM 29.5-M
and $58-M, respectively. Moreover, a comparison of the list of
securities of the Spinus Foundation as of February 3, 1982 with the
safe deposit slips of the Avertina Foundation Category CAR as of
August 19, 1982 shows that all the securities of Spinus were
transferred to Avertina.
J. TRINIDAD-RAYBY-PALMY
34

FOUNDATION ACCOUNTS
42. The Trinidad Foundation was organized on August 26, 1970 in
Vaduz with C.W. Fessler and E. Scheller of SKA and Dr. Otto
Tondury as the foundations directors. Imelda issued a written
mandate to establish the foundation to Markus Geel on August 26,
1970. The regulations as well as the agreement, both dated August
28, 1970 were likewise signed by Imelda. Imelda was named the
first beneficiary and her children Imelda (Imee), Ferdinand, Jr.
(Bongbong) and, Irene were named as equal second beneficiaries.
43. Rayby Foundation was established on June 22, 1973 in Vaduz
with Fessler, Scheller and Ritter as members of the board of
directors. Imelda issued a written mandate to Dr. Theo Bertheau to
establish the foundation with a note that the foundations
capitalization as well as the cost of establishing it be debited against
the account of Trinidad Foundation. Imelda was named the first and
only beneficiary of Rayby foundation. According to written
information from SKA dated November 28, 1988, Imelda apparently
had the intention in 1973 to transfer part of the assets of Trinidad
Foundation to another foundation, thus the establishment of Rayby
Foundation. However, transfer of assets never took place. On
March 10, 1981, Imelda issued a written order to transfer all the
assets of Rayby Foundation to Trinidad Foundation and to
subsequently liquidate Rayby. On the same date, she issued a
written order to the board of Trinidad to dissolve the foundation and
transfer all its assets to Bank Hofmann in favor of Fides Trust Co.
Under the account Reference Dido, Rayby was dissolved on April
6, 1981 and Trinidad was liquidated on August 3, 1981.
44. The PALMY FOUNDATION was established on May 13, 1981
in Vaduz with Dr. Ivo Beck and Limag Management, a wholly-owned
subsidiary of Fides Trust Co, as members of the Foundations Board
of Directors. The account was officially opened with the SKA on
September 10, 1981. The beneficial owner was not made known to
the bank since Fides Trust Co. acted as fiduciary. However, when
one compares the listing of securities in the safe deposit register of
Trinidad Foundation as of December 31,1980 with that of the Palmy
Foundation as of December 31, 1980, one can clearly see that
practically the same securities were listed. Under the circumstances,
it is certain that the Palmy Foundation is the beneficial successor of
the Trinidad Foundation.
45. As of December 31, 1989, the ending balance of the bank
accounts of Palmy Foundation under General Account No. 391528
is $17,214,432.00.
46. Latest documents received from Swiss Authorities included a
declaration signed by Dr. Ivo Beck stating that the beneficial owner
of Palmy Foundation is Imelda. Another document signed by Raber
shows that the said Palmy Foundation is owned by Marcos
Familie.
K. ROSALYS-AGUAMINA
FOUNDATION ACCOUNTS
47. Rosalys Foundation was established in 1971 with FM as the
beneficiary. Its Articles of Incorporation was executed on September
24, 1971 and its By-Laws on October 3, 1971. This foundation
maintained several accounts with Swiss Bank Corporation (SBC)
under the general account 51960 where most of the bribe monies
from Japanese suppliers were hidden.
48. On December 19, 1985, Rosalys Foundation was liquidated and
all its assets were transferred to Aguamina Corporations (Panama)
Account No. 53300 with SBC. The ownership by Aguamina
Corporation of Account No. 53300 is evidenced by an opening
account documents from the bank. J. Christinaz and R.L. Rossier,
First Vice-President and Senior Vice President, respectively, of
SBC, Geneva issued a declaration dated September 3, 1991 stating
that the by-laws dated October 3, 1971 governing Rosalys
Foundation was the same by-law applied to Aguamina Corporation
Account No. 53300. They further confirmed that no change of
beneficial owner was involved while transferring the assets of
Rosalys to Aguamina. Hence, FM remains the beneficiary of
Aguamina Corporation Account No. 53300.
As of August 30, 1991, the ending balance of Account No. 53300
amounted to $80,566,483.00.
L. MALER FOUNDATION ACCOUNTS
49. Maler was first created as an establishment. A statement of its
rules and regulations was found among Malacaang documents. It
stated, among others, that 50% of the Companys assets will be for
sole and full right disposal of FM and Imelda during their lifetime,
which the remaining 50% will be divided in equal parts among their
children. Another Malacaang document dated October 19,1968
and signed by Ferdinand and Imelda pertains to the appointment of
Dr. Andre Barbey and Jean Louis Sunier as attorneys of the
company and as administrator and manager of all assets held by the
company. The Marcos couple, also mentioned in the said document
that they bought the Maler Establishment from SBC, Geneva. On
the same date, FM and Imelda issued a letter addressed to Maler
Establishment, stating that all instructions to be transmitted with
regard to Maler will be signed with the word JOHN LEWIS. This
word will have the same value as the couples own personal
signature. The letter was signed by FM and Imelda in their
signatures and as John Lewis.
50. Maler Establishment opened and maintained bank accounts
with SBC, Geneva. The opening bank documents were signed by
Dr. Barbey and Mr. Sunnier as authorized signatories.
51. On November 17, 1981, it became necessary to transform
Maler Establishment into a foundation. Likewise, the attorneys were
changed to Michael Amaudruz, et. al. However, administration of the
assets was left to SBC. The articles of incorporation of Maler
Foundation registered on November 17, 1981 appear to be the
same articles applied to Maler Establishment. On February 28,
1984, Maler Foundation cancelled the power of attorney for the
management of its assets in favor of SBC and transferred such
power to Sustrust Investment Co., S.A.
52. As of June 6, 1991, the ending balance of Maler Foundations
Account Nos. 254,508 BT and 98,929 NY amount SF 9,083,567 and
SG 16,195,258, respectively, for a total of SF 25,278,825.00. GM
only until December 31, 1980. This account was opened by Maler
when it was still an establishment which was subsequently
transformed into a foundation.
53. All the five (5) group accounts in the over-all flow chart have a
total balance of about Three Hundred Fifty Six Million Dollars
($356,000,000.00) as shown by Annex R-5 hereto attached as
integral part hereof.
x x x x x x.
[27]

Respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M.
Araneta and Ferdinand Marcos, Jr., in their answer, stated the
following:
xxx xxx xxx
4. Respondents ADMIT paragraphs 3 and 4 of the Petition.
5. Respondents specifically deny paragraph 5 of the Petition in
so far as it states that summons and other court processes may be
served on Respondent Imelda R. Marcos at the stated address the
truth of the matter being that Respondent Imelda R. Marcos may be
served with summons and other processes at No. 10-B Bel Air
Condominium 5022 P. Burgos Street, Makati, Metro Manila, and
ADMIT the rest.
xxx xxx xxx
10. Respondents ADMIT paragraph 11 of the Petition.
11. Respondents specifically DENY paragraph 12 of the Petition for
lack of knowledge sufficient to form a belief as to the truth of the
allegation since Respondents were not privy to the transactions and
that they cannot remember exactly the truth as to the matters
alleged.
12. Respondents specifically DENY paragraph 13 of the Petition for
lack of knowledge or information sufficient to form a belief as to the
truth of the allegation since Respondents cannot remember with
exactitude the contents of the alleged ITRs and Balance Sheet.
13. Respondents specifically DENY paragraph 14 of the Petition for
lack of knowledge or information sufficient to form a belief as to the
35

truth of the allegation since Respondents cannot remember with
exactitude the contents of the alleged ITRs.
14. Respondents specifically DENY paragraph 15 of the Petition for
lack of knowledge or information sufficient to form a belief as to the
truth of the allegation since Respondents cannot remember with
exactitude the contents of the alleged ITRs.
15. Respondents specifically DENY paragraph 16 of the Petition for
lack of knowledge or information sufficient to form a belief as to the
truth of the allegation since Respondents cannot remember with
exactitude the contents of the alleged ITRs.
16. Respondents specifically DENY paragraph 17 of the Petition
insofar as it attributes willful duplicity on the part of the late President
Marcos, for being false, the same being pure conclusions based on
pure assumption and not allegations of fact; and specifically DENY
the rest for lack of knowledge or information sufficient to form a
belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs or the
attachments thereto.
17. Respondents specifically DENY paragraph 18 of the Petition for
lack of knowledge or information sufficient to form a belief as to the
truth of the allegation since Respondents cannot remember with
exactitude the contents of the alleged ITRs.
18. Respondents specifically DENY paragraph 19 of the Petition for
lack of knowledge or information sufficient to form a belief as to the
truth of the allegation since Respondents cannot remember with
exactitude the contents of the alleged ITRs and that they are not
privy to the activities of the BIR.
19. Respondents specifically DENY paragraph 20 of the Petition for
lack of knowledge or information sufficient to form a belief as to the
truth of the allegation since Respondents cannot remember with
exactitude the contents of the alleged ITRs.
20. Respondents specifically DENY paragraph 21 of the Petition for
lack of knowledge or information sufficient to form a belief as to the
truth of the allegation since Respondents cannot remember with
exactitude the contents of the alleged ITRs.
21. Respondents specifically DENY paragraph 22 of the Petition for
lack of knowledge or information sufficient to form a belief as to the
truth of the allegation since Respondents cannot remember with
exactitude the contents of the alleged ITRs.
22. Respondents specifically DENY paragraph 23 insofar as it
alleges that Respondents clandestinely stashed the countrys wealth
in Switzerland and hid the same under layers and layers of
foundation and corporate entities for being false, the truth being that
Respondents aforesaid properties were lawfully acquired.
23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28,
29 and 30 of the Petition for lack of knowledge or information
sufficient to form a belief as to the truth of the allegation since
Respondents were not privy to the transactions regarding the
alleged Azio-Verso-Vibur Foundation accounts, except that as to
Respondent Imelda R. Marcos she specifically remembers that the
funds involved were lawfully acquired.
24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35,
36,37, 38, 39, 40, and 41 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegations
since Respondents are not privy to the transactions and as to such
transaction they were privy to they cannot remember with exactitude
the same having occurred a long time ago, except that as to
Respondent Imelda R. Marcos she specifically remembers that the
funds involved were lawfully acquired.
25. Respondents specifically DENY paragraphs 42, 43, 44, 45, and
46, of the Petition for lack of knowledge or information sufficient to
form a belief as to the truth of the allegations since Respondents
were not privy to the transactions and as to such transaction they
were privy to they cannot remember with exactitude the same
having occurred a long time ago, except that as to Respondent
Imelda R. Marcos she specifically remembers that the funds
involved were lawfully acquired.
26. Respondents specifically DENY paragraphs 49, 50, 51 and 52,
of the Petition for lack of knowledge or information sufficient to form
a belief as to the truth of the allegations since Respondents were not
privy to the transactions and as to such transaction they were privy
to they cannot remember with exactitude the same having occurred
a long time ago, except that as to Respondent Imelda R. Marcos
she specifically remembers that the funds involved were lawfully
acquired.
Upon careful perusal of the foregoing, the Court finds that
respondent Mrs. Marcos and the Marcos children indubitably failed
to tender genuine issues in their answer to the petition for
forfeiture. A genuine issue is an issue of fact which calls for the
presentation of evidence as distinguished from an issue which is
fictitious and contrived, set up in bad faith or patently lacking in
substance so as not to constitute a genuine issue for trial.
Respondents defenses of lack of knowledge for lack of privity or
(inability to) recall because it happened a long time ago or, on the
part of Mrs. Marcos, that the funds were lawfully acquired are fully
insufficient to tender genuine issues. Respondent Marcoses
defenses were a sham and evidently calibrated to compound and
confuse the issues.
The following pleadings filed by respondent Marcoses are replete
with indications of a spurious defense:
(a) Respondents' Answer dated October 18, 1993;
(b) Pre-trial Brief dated October 4, 1999 of Mrs. Marcos,
Supplemental Pre-trial Brief dated October 19, 1999 of Ferdinand,
Jr. and Mrs. Imee Marcos-Manotoc adopting the pre-trial brief of
Mrs. Marcos, and Manifestation dated October 19, 1999 of Irene
Marcos-Araneta adopting the pre-trial briefs of her co- respondents;
(c) Opposition to Motion for Summary Judgment dated March 21,
2000, filed by Mrs. Marcos which the other respondents (Marcos
children) adopted;
(d) Demurrer to Evidence dated May 2, 2000 filed by Mrs. Marcos
and adopted by the Marcos children;
(e) Motion for Reconsideration dated September 26, 2000 filed by
Mrs. Marcos; Motion for Reconsideration dated October 5, 2000
jointly filed by Mrs. Manotoc and Ferdinand, Jr., and Supplemental
Motion for Reconsideration dated October 9, 2000 likewise jointly
filed by Mrs. Manotoc and Ferdinand, Jr.;
(f) Memorandum dated December 12, 2000 of Mrs. Marcos and
Memorandum dated December 17, 2000 of the Marcos children;
(g) Manifestation dated May 26, 1998; and
(h) General/Supplemental Agreement dated December 23, 1993.
An examination of the foregoing pleadings is in order.
Respondents Answer dated October 18, 1993.
In their answer, respondents failed to specifically deny each and
every allegation contained in the petition for forfeiture in the manner
required by the rules. All they gave were stock answers like they
have no sufficient knowledge or they could not recall because it
happened a long time ago, and, as to Mrs. Marcos, the funds were
lawfully acquired, without stating the basis of such assertions.
Section 10, Rule 8 of the 1997 Rules of Civil Procedure, provides:
A defendant must specify each material allegation of fact the truth of
which he does not admit and, whenever practicable, shall set forth
the substance of the matters upon which he relies to support his
denial. Where a defendant desires to deny only a part of an
averment, he shall specify so much of it as is true and material and
shall deny the remainder. Where a defendant is without knowledge
or information sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state, and this shall
have the effect of a denial.
[28]

The purpose of requiring respondents to make a specific denial is to
make them disclose facts which will disprove the allegations of
petitioner at the trial, together with the matters they rely upon in
support of such denial. Our jurisdiction adheres to this rule to avoid
and prevent unnecessary expenses and waste of time by compelling
both parties to lay their cards on the table, thus reducing the
controversy to its true terms. As explained in Alonso vs. Villamor,
[29]

A litigation is not a game of technicalities in which one, more deeply
schooled and skilled in the subtle art of movement and position,
entraps and destroys the other. It is rather a contest in which each
36

contending party fully and fairly lays before the court the facts in
issue and then, brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of procedure, asks that
justice be done upon the merits. Lawsuits, unlike duels, are not to be
won by a rapiers thrust.
On the part of Mrs. Marcos, she claimed that the funds were lawfully
acquired. However, she failed to particularly state the ultimate facts
surrounding the lawful manner or mode of acquisition of the subject
funds. Simply put, she merely stated in her answer with the other
respondents that the funds were lawfully acquired without detailing
how exactly these funds were supposedly acquired legally by them.
Even in this case before us, her assertion that the funds were
lawfully acquired remains bare and unaccompanied by any factual
support which can prove, by the presentation of evidence at a
hearing, that indeed the funds were acquired legitimately by the
Marcos family.
Respondents denials in their answer at the Sandiganbayan were
based on their alleged lack of knowledge or information sufficient to
form a belief as to the truth of the allegations of the petition.
It is true that one of the modes of specific denial under the rules is a
denial through a statement that the defendant is without knowledge
or information sufficient to form a belief as to the truth of the material
averment in the complaint. The question, however, is whether the
kind of denial in respondents answer qualifies as the specific denial
called for by the rules. We do not think so. In Morales vs. Court of
Appeals,
[30]
this Court ruled that if an allegation directly and
specifically charges a party with having done, performed or
committed a particular act which the latter did not in fact do, perform
or commit, a categorical and express denial must be made.
Here, despite the serious and specific allegations against them, the
Marcoses responded by simply saying that they had no knowledge
or information sufficient to form a belief as to the truth of such
allegations. Such a general, self-serving claim of ignorance of the
facts alleged in the petition for forfeiture was insufficient to raise an
issue. Respondent Marcoses should have positively stated how it
was that they were supposedly ignorant of the facts alleged.
[31]

To elucidate, the allegation of petitioner Republic in paragraph 23 of
the petition for forfeiture stated:
23. The following presentation very clearly and overwhelmingly
show in detail how both respondents clandestinely stashed away the
countrys wealth to Switzerland and hid the same under layers upon
layers of foundations and other corporate entities to prevent its
detection. Through their dummies/nominees, fronts or agents who
formed those foundations or corporate entities, they opened and
maintained numerous bank accounts. But due to the difficulty if not
the impossibility of detecting and documenting all those secret
accounts as well as the enormity of the deposits therein hidden, the
following presentation is confined to five identified accounts groups,
with balances amounting to about $356-M with a reservation for the
filing of a supplemental or separate forfeiture complaint should the
need arise.
[32]

Respondents lame denial of the aforesaid allegation was:
22. Respondents specifically DENY paragraph 23 insofar as it
alleges that Respondents clandestinely stashed the countrys wealth
in Switzerland and hid the same under layers and layers of
foundations and corporate entities for being false, the truth being
that Respondents aforesaid properties were lawfully acquired.
[33]

Evidently, this particular denial had the earmark of what is called in
the law on pleadings as a negative pregnant, that is, a denial
pregnant with the admission of the substantial facts in the pleading
responded to which are not squarely denied. It was in effect an
admission of the averments it was directed at.
[34]
Stated otherwise, a
negative pregnant is a form of negative expression which carries
with it an affirmation or at least an implication of some kind favorable
to the adverse party. It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is alleged with
qualifying or modifying language and the words of the allegation as
so qualified or modified are literally denied, has been held that the
qualifying circumstances alone are denied while the fact itself is
admitted.
[35]

In the instant case, the material allegations in paragraph 23 of the
said petition were not specifically denied by respondents in
paragraph 22 of their answer. The denial contained in paragraph 22
of the answer was focused on the averment in paragraph 23 of the
petition for forfeiture that Respondents clandestinely stashed the
countrys wealth in Switzerland and hid the same under layers and
layers of foundations and corporate entities. Paragraph 22 of the
respondents answer was thus a denial pregnant with admissions of
the following substantial facts:
(1) the Swiss bank deposits existed and
(2) that the estimated sum thereof was US$356 million as of
December, 1990.
Therefore, the allegations in the petition for forfeiture on the
existence of the Swiss bank deposits in the sum of about US$356
million, not having been specifically denied by respondents in their
answer, were deemed admitted by them pursuant to Section 11,
Rule 8 of the 1997 Revised Rules on Civil Procedure:
Material averment in the complaint, xxx shall be deemed admitted
when not specifically denied. xxx.
[36]

By the same token, the following unsupported denials of
respondents in their answer were pregnant with admissions of the
substantial facts alleged in the Republics petition for forfeiture:
23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28,
29 and 30 of the Petition for lack of knowledge or information
sufficient to form a belief as to the truth of the allegation since
respondents were not privy to the transactions regarding the alleged
Azio-Verso-Vibur Foundation accounts, except that, as to
respondent Imelda R. Marcos, she specifically remembers that the
funds involved were lawfully acquired.
24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35,
36, 37, 38, 39, 40, 41 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegations
since respondents were not privy to the transactions and as to such
transactions they were privy to, they cannot remember with
exactitude the same having occurred a long time ago, except as to
respondent Imelda R. Marcos, she specifically remembers that the
funds involved were lawfully acquired.
25. Respondents specifically DENY paragraphs 42, 43, 45, and 46
of the petition for lack of knowledge or information sufficient to from
a belief as to the truth of the allegations since respondents were not
privy to the transactions and as to such transaction they were privy
to, they cannot remember with exactitude, the same having occurred
a long time ago, except that as to respondent Imelda R. Marcos, she
specifically remembers that the funds involved were lawfully
acquired.
26. Respondents specifically DENY paragraphs 49, 50, 51 and 52 of
the petition for lack of knowledge and information sufficient to form a
belief as to the truth of the allegations since respondents were not
privy to the transactions and as to such transaction they were privy
to they cannot remember with exactitude the same having occurred
a long time ago, except that as to respondent Imelda R. Marcos, she
specifically remembers that the funds involved were lawfully
acquired.
The matters referred to in paragraphs 23 to 26 of the respondents
answer pertained to the creation of five groups of accounts as well
as their respective ending balances and attached documents
alleged in paragraphs 24 to 52 of the Republics petition for
forfeiture. Respondent Imelda R. Marcos never specifically denied
the existence of the Swiss funds. Her claim that the funds involved
were lawfully acquired was an acknowledgment on her part of the
existence of said deposits. This only reinforced her earlier admission
of the allegation in paragraph 23 of the petition for forfeiture
regarding the existence of the US$356 million Swiss bank deposits.
The allegations in paragraphs 47
[37]
and 48
[38]
of the petition for
forfeiture referring to the creation and amount of the deposits of the
Rosalys-Aguamina Foundation as well as the averment in paragraph
52-a
[39]
of the said petition with respect to the sum of the Swiss bank
37

deposits estimated to be US$356 million were again not specifically
denied by respondents in their answer. The respondents did not at
all respond to the issues raised in these paragraphs and the
existence, nature and amount of the Swiss funds were therefore
deemed admitted by them. As held in Galofa vs. Nee Bon Sing,
[40]
if
a defendants denial is a negative pregnant, it is equivalent to an
admission.
Moreover, respondents denial of the allegations in the petition for
forfeiture for lack of knowledge or information sufficient to form a
belief as to the truth of the allegations since respondents were not
privy to the transactions was just a pretense. Mrs. Marcos privity to
the transactions was in fact evident from her signatures on some of
the vital documents
[41]
attached to the petition for forfeiture which
Mrs. Marcos failed to specifically deny as required by the rules.
[42]

It is worthy to note that the pertinent documents attached to the
petition for forfeiture were even signed personally by respondent
Mrs. Marcos and her late husband, Ferdinand E. Marcos, indicating
that said documents were within their knowledge. As correctly
pointed out by Sandiganbayan Justice Francisco Villaruz, Jr. in his
dissenting opinion:
The pattern of: 1) creating foundations, 2) use of pseudonyms and
dummies, 3) approving regulations of the Foundations for the
distribution of capital and income of the Foundations to the First and
Second beneficiary (who are no other than FM and his family), 4)
opening of bank accounts for the Foundations, 5) changing the
names of the Foundations, 6) transferring funds and assets of the
Foundations to other Foundations or Fides Trust, 7) liquidation of
the Foundations as substantiated by the Annexes U to U-168,
Petition [for forfeiture] strongly indicate that FM and/or Imelda were
the real owners of the assets deposited in the Swiss banks, using
the Foundations as dummies.
[43]

How could respondents therefore claim lack of sufficient knowledge
or information regarding the existence of the Swiss bank deposits
and the creation of five groups of accounts when Mrs. Marcos and
her late husband personally masterminded and participated in the
formation and control of said foundations? This is a fact respondent
Marcoses were never able to explain.
Not only that. Respondents' answer also technically admitted the
genuineness and due execution of the Income Tax Returns (ITRs)
and the balance sheets of the late Ferdinand E. Marcos and Imelda
R. Marcos attached to the petition for forfeiture, as well as the
veracity of the contents thereof.
The answer again premised its denials of said ITRs and balance
sheets on the ground of lack of knowledge or information sufficient
to form a belief as to the truth of the contents thereof. Petitioner
correctly points out that respondents' denial was not really grounded
on lack of knowledge or information sufficient to form a belief but
was based on lack of recollection. By reviewing their own records,
respondent Marcoses could have easily determined the
genuineness and due execution of the ITRs and the balance
sheets. They also had the means and opportunity of verifying the
same from the records of the BIR and the Office of the
President. They did not.
When matters regarding which respondents claim to have no
knowledge or information sufficient to form a belief are plainly and
necessarily within their knowledge, their alleged ignorance or lack
of information will not be considered a specific denial.
[44]
An
unexplained denial of information within the control of the pleader, or
is readily accessible to him, is evasive and is insufficient to
constitute an effective denial.
[45]

The form of denial adopted by respondents must be availed of with
sincerity and in good faith, and certainly not for the purpose of
confusing the adverse party as to what allegations of the petition are
really being challenged; nor should it be made for the purpose of
delay.
[46]
In the instant case, the Marcoses did not only present
unsubstantiated assertions but in truth attempted to mislead and
deceive this Court by presenting an obviously contrived defense.
Simply put, a profession of ignorance about a fact which is patently
and necessarily within the pleaders knowledge or means of knowing
is as ineffective as no denial at all.
[47]
Respondents ineffective
denial thus failed to properly tender an issue and the averments
contained in the petition for forfeiture were deemed judicially
admitted by them.
As held in J.P. Juan & Sons, Inc. vs. Lianga Industries, Inc.:
Its specific denial of the material allegation of the petition without
setting forth the substance of the matters relied upon to support its
general denial, when such matters were plainly within its knowledge
and it could not logically pretend ignorance as to the same,
therefore, failed to properly tender on issue.
[48]

Thus, the general denial of the Marcos children of the allegations in
the petition for forfeiture for lack of knowledge or information
sufficient to form a belief as to the truth of the allegations since they
were not privy to the transactions cannot rightfully be accepted as a
defense because they are the legal heirs and successors-in-interest
of Ferdinand E. Marcos and are therefore bound by the acts of their
father vis-a-vis the Swiss funds.
PRE-TRIAL BRIEF DATED OCTOBER 18, 1993
The pre-trial brief of Mrs. Marcos was adopted by the three Marcos
children. In said brief, Mrs. Marcos stressed that the funds involved
were lawfully acquired. But, as in their answer, they failed to state
and substantiate how these funds were acquired lawfully. They
failed to present and attach even
a single document that would show and prove the truth of
their allegations. Section 6, Rule 18 of the 1997 Rules of Civil
Procedure provides:
The parties shall file with the court and serve on the adverse party, x
x x their respective pre-trial briefs which shall contain, among others:
x x x
(d) the documents or exhibits to be presented, stating the purpose
thereof;
x x x
(f) the number and names of the witnesses, and the substance of
their respective testimonies.
[49]

It is unquestionably within the courts power to require the parties to
submit their pre-trial briefs and to state the number of witnesses
intended to be called to the stand, and a brief summary of the
evidence each of them is expected to give as well as to disclose the
number of documents to be submitted with a description of the
nature of each. The tenor and character of the testimony of the
witnesses and of the documents to be deduced at the trial thus
made known, in addition to the particular issues of fact and law, it
becomes apparent if genuine issues are being put forward
necessitating the holding of a trial. Likewise, the parties are obliged
not only to make a formal identification and specification of the
issues and their proofs, and to put these matters in writing and
submit them to the court within the specified period for the prompt
disposition of the action.
[50]

The pre-trial brief of Mrs. Marcos, as subsequently adopted by
respondent Marcos children, merely stated:
x x x
WITNESSES
4.1 Respondent Imelda will present herself as a witness and
reserves the right to present additional witnesses as may be
necessary in the course of the trial.
x x x
DOCUMENTARY EVIDENCE
5.1 Respondent Imelda reserves the right to present and introduce
in evidence documents as may be necessary in the course of the
trial.
Mrs. Marcos did not enumerate and describe the documents
constituting her evidence. Neither the names of witnesses nor the
nature of their testimony was stated. What alone appeared certain
was the testimony of Mrs. Marcos only who in fact had previously
claimed ignorance and lack of knowledge. And even then, the
substance of her testimony, as required by the rules, was not made
known either. Such cunning tactics of respondents are totally
unacceptable to this Court. We hold that, since no genuine issue
was raised, the case became ripe for summary judgment.
38

OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
DATED MARCH 21, 2000
The opposition filed by Mrs. Marcos to the motion for summary
judgment dated March 21, 2000 of petitioner Republic was merely
adopted by the Marcos children as their own opposition to the said
motion. However, it was again not accompanied by affidavits,
depositions or admissions as required by Section 3, Rule 35 of the
1997 Rules on Civil Procedure:
x x x The adverse party may serve opposing affidavits, depositions,
or admissions at least three (3) days before hearing. After hearing,
the judgment sought shall be rendered forthwith if the pleadings,
supporting affidavits, depositions, and admissions on file, show that,
except as to the amount of damages, there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment
as a matter of law.
[51]

The absence of opposing affidavits, depositions and admissions to
contradict the sworn declarations in the Republics motion only
demonstrated that the averments of such opposition were not
genuine and therefore unworthy of belief.
Demurrer to Evidence dated May 2, 2000;
[52]

Motions for Reconsideration;
[53]
and Memoranda
of Mrs. Marcos and the Marcos children
[54]

All these pleadings again contained no allegations of facts showing
their lawful acquisition of the funds. Once more, respondents merely
made general denials without alleging facts which would have been
admissible in evidence at the hearing, thereby failing to raise
genuine issues of fact.
Mrs. Marcos insists in her memorandum dated October 21, 2002
that, during the pre-trial, her counsel stated that his client was just a
beneficiary of the funds, contrary to petitioner Republics allegation
that Mrs. Marcos disclaimed ownership of or interest in the funds.
This is yet another indication that respondents presented a fictitious
defense because, during the pre-trial, Mrs. Marcos and the Marcos
children denied ownership of or interest in the Swiss funds:
PJ Garchitorena:
Make of record that as far as Imelda Marcos is concerned through
the statement of Atty. Armando M. Marcelo that the US$360 million
more or less subject matter of the instant lawsuit as allegedly
obtained from the various Swiss Foundations do not belong to the
estate of Marcos or to Imelda Marcos herself. Thats your statement
of facts?
Atty. MARCELO:
Yes, Your Honor.
PJ Garchitorena:
Thats it. Okay. Counsel for Manotoc and Manotoc, Jr. What is your
point here? Does the estate of Marcos own anything of the $360
million subject of this case.
Atty. TECSON:
We joined the Manifestation of Counsel.
PJ Garchitorena:
You do not own anything?
Atty. TECSON:
Yes, Your Honor.
PJ Garchitorena:
Counsel for Irene Araneta?
Atty. SISON:
I join the position taken by my other compaeros here, Your Honor.
xxx
Atty. SISON:
Irene Araneta as heir do (sic) not own any of the amount, Your
Honor.
[55]

We are convinced that the strategy of respondent Marcoses was to
confuse petitioner Republic as to what facts they would prove or
what issues they intended to pose for the court's resolution. There is
no doubt in our mind that they were leading petitioner Republic, and
now this Court, to perplexity, if not trying to drag this forfeiture case
to eternity.
Manifestation dated May 26, 1998 filed by MRS.
Marcos; General/Supplemental Compromise
Agreement dated December 28, 1993
These pleadings of respondent Marcoses presented nothing but
feigned defenses. In their earlier pleadings, respondents alleged
either that they had no knowledge of the existence of the Swiss
deposits or that they could no longer remember anything as it
happened a long time ago. As to Mrs. Marcos, she remembered that
it was lawfully acquired.
In her Manifestation dated May 26, 1998, Mrs. Marcos stated that:
COMES NOW undersigned counsel for respondent Imelda R.
Marcos, and before this Honorable Court, most respectfully
manifests:
That respondent Imelda R, Marcos owns 90% of the subject matter
of the above-entitled case, being the sole beneficiary of the dollar
deposits in the name of the various foundations alleged in the case;
That in fact only 10% of the subject matter in the above-entitled case
belongs to the estate of the late President Ferdinand E. Marcos.
In the Compromise/Supplemental Agreements, respondent
Marcoses sought to implement the agreed distribution of the Marcos
assets, including the Swiss deposits. This was, to us, an
unequivocal admission of ownership by the Marcoses of the said
deposits.
But, as already pointed out, during the pre-trial conference,
respondent Marcoses denied knowledge as well as ownership of the
Swiss funds.
Anyway we look at it, respondent Marcoses have put forth no real
defense. The facts pleaded by respondents, while ostensibly
raising important questions or issues of fact, in reality comprised
mere verbiage that was evidently wanting in substance and
constituted no genuine issues for trial.
We therefore rule that, under the circumstances, summary judgment
is proper.
In fact, it is the law itself which determines when summary judgment
is called for. Under the rules, summary judgment is appropriate
when there are no genuine issues of fact requiring the presentation
of evidence in a full-blown trial. Even if on their face the pleadings
appear to raise issue, if the affidavits, depositions and admissions
show that such issues are not genuine, then summary judgment as
prescribed by the rules must ensue as a matter of law.
[56]

In sum, mere denials, if unaccompanied by any fact which will be
admissible in evidence at a hearing, are not sufficient to raise
genuine issues of fact and will not defeat a motion for summary
judgment.
[57]
A summary judgment is one granted upon motion of a
party for an expeditious settlement of the case, it appearing from the
pleadings, depositions, admissions and affidavits that there are no
important questions or issues of fact posed and, therefore, the
movant is entitled to a judgment as a matter of law. A motion for
summary judgment is premised on the assumption that the issues
presented need not be tried either because these are patently
devoid of substance or that there is no genuine issue as to any
pertinent fact. It is a method sanctioned by the Rules of Court for
the prompt disposition of a civil action where there exists no serious
controversy.
[58]
Summary judgment is a procedural device for the
prompt disposition of actions in which the pleadings raise only a
legal issue, not a genuine issue as to any material fact. The theory
of summary judgment is that, although an answer may on its face
appear to tender issues requiring trial, if it is established by
affidavits, depositions or admissions that those issues are not
genuine but fictitious, the Court is justified in dispensing with the trial
and rendering summary judgment for petitioner.
[59]

In the various annexes to the petition for forfeiture, petitioner
Republic attached sworn statements of witnesses who had personal
knowledge of the Marcoses' participation in the illegal acquisition of
funds deposited in the Swiss accounts under the names of five
groups or foundations. These sworn statements substantiated the ill-
gotten nature of the Swiss bank deposits. In their answer and other
subsequent pleadings, however, the Marcoses merely made general
denials of the allegations against them without stating facts
admissible in evidence at the hearing, thereby failing to raise any
genuine issues of fact.
39

Under these circumstances, a trial would have served no purpose at
all and would have been totally unnecessary, thus justifying a
summary judgment on the petition for forfeiture. There were no
opposing affidavits to contradict the sworn declarations of the
witnesses of petitioner Republic, leading to the inescapable
conclusion that the matters raised in the Marcoses answer were
false.
Time and again, this Court has encountered cases like this which
are either only half-heartedly defended or, if the semblance of a
defense is interposed at all, it is only to delay disposition and gain
time. It is certainly not in the interest of justice to allow respondent
Marcoses to avail of the appellate remedies accorded by the Rules
of Court to litigants in good faith, to the prejudice of the Republic and
ultimately of the Filipino people. From the beginning, a candid
demonstration of respondents good faith should have been made to
the court below. Without the deceptive reasoning and
argumentation, this protracted litigation could have ended a long
time ago.
Since 1991, when the petition for forfeiture was first filed, up to the
present, all respondents have offered are foxy responses like lack
of sufficient knowledge or lack of privity or they cannot recall
because it happened a long time ago or, as to Mrs. Marcos, the
funds were lawfully acquired. But, whenever it suits them, they also
claim ownership of 90% of the funds and allege that only 10%
belongs to the Marcos estate. It has been an incredible charade
from beginning to end.
In the hope of convincing this Court to rule otherwise, respondents
Maria Imelda Marcos-Manotoc and Ferdinand R. Marcos Jr. contend
that "by its positive acts and express admissions prior to filing the
motion for summary judgment on March 10, 2000, petitioner
Republic had bound itself to go to trial on the basis of existing
issues. Thus, it had legally waived whatever right it had to move for
summary judgment."
[60]

We do not think so. The alleged positive acts and express
admissions of the petitioner did not preclude it from filing a motion
for summary judgment.
Rule 35 of the 1997 Rules of Civil Procedure provides:
Rule 35
Summary Judgment
Section 1. Summary judgment for claimant. - A party seeking to
recover upon a claim, counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the pleading in answer
thereto has been served, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor upon
all or any part thereof.
Section 2. Summary judgment for defending party. - A party against
whom a claim, counterclaim, or cross-claim is asserted or a
declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his
favor as to all or any part thereof. (Emphasis ours)
[61]

Under the rule, the plaintiff can move for summary judgment at any
time after the pleading in answer thereto (i.e., in answer to the claim,
counterclaim or cross-claim) has been served." No fixed
reglementary period is provided by the Rules. How else does one
construe the phrase "any time after the answer has been served?
This issue is actually one of first impression. No local jurisprudence
or authoritative work has touched upon this matter. This being so, an
examination of foreign laws and jurisprudence, particularly those of
the United States where many of our laws and rules were copied, is
in order.
Rule 56 of the Federal Rules of Civil Procedure provides that a party
seeking to recover upon a claim, counterclaim or cross-claim may
move for summary judgment at any time after the expiration of 20
days from the commencement of the action or after service of a
motion for summary judgment by the adverse party, and that a party
against whom a claim, counterclaim or cross-claim is asserted may
move for summary judgment at any time.
However, some rules, particularly Rule 113 of the Rules of Civil
Practice of New York, specifically provide that a motion for summary
judgment may not be made until issues have been joined, that is,
only after an answer has been served.
[62]
Under said rule, after
issues have been joined, the motion for summary judgment may be
made at any stage of the litigation.
[63]
No fixed prescriptive period is
provided.
Like Rule 113 of the Rules of Civil Practice of New York, our rules
also provide that a motion for summary judgment may not be made
until issues have been joined, meaning, the plaintiff has to wait for
the answer before he can move for summary judgment.
[64]
And like
the New York rules, ours do not provide for a fixed reglementary
period within which to move for summary judgment.
This being so, the New York Supreme Court's interpretation of Rule
113 of the Rules of Civil Practice can be applied by analogy to the
interpretation of Section 1, Rule 35, of our 1997 Rules of Civil
Procedure.
Under the New York rule, after the issues have been joined, the
motion for summary judgment may be made at any stage of the
litigation. And what exactly does the phrase "at any stage of the
litigation" mean? In Ecker vs. Muzysh,
[65]
the New York Supreme
Court ruled:
"PER CURIAM.
Plaintiff introduced her evidence and the defendants rested on the
case made by the plaintiff. The case was submitted. Owing to the
serious illness of the trial justice, a decision was not rendered within
sixty days after the final adjournment of the term at which the case
was tried. With the approval of the trial justice, the plaintiff moved for
a new trial under Section 442 of the Civil Practice Act. The plaintiff
also moved for summary judgment under Rule 113 of the Rules of
Civil Practice. The motion was opposed mainly on the ground
that, by proceeding to trial, the plaintiff had waived her right to
summary judgment and that the answer and the opposing
affidavits raised triable issues. The amount due and unpaid under
the contract is not in dispute. The Special Term granted both
motions and the defendants have appealed.
The Special Term properly held that the answer and the opposing
affidavits raised no triable issue. Rule 113 of the Rules of Civil
Practice and the Civil Practice Act prescribe no limitation as to
the time when a motion for summary judgment must be made.
The object of Rule 113 is to empower the court to summarily
determine whether or not a bona fide issue exists between the
parties, and there is no limitation on the power of the court to
make such a determination at any stage of the litigation."
(emphasis ours)
On the basis of the aforequoted disquisition, "any stage of the
litigation" means that "even if the plaintiff has proceeded to trial, this
does not preclude him from thereafter moving for summary
judgment."
[66]

In the case at bar, petitioner moved for summary judgment after pre-
trial and before its scheduled date for presentation of evidence.
Respondent Marcoses argue that, by agreeing to proceed to trial
during the pre-trial conference, petitioner "waived" its right to
summary judgment.
This argument must fail in the light of the New York Supreme Court
ruling which we apply by analogy to this case. In Ecker,
[67]
the
defendant opposed the motion for summary judgment on a ground
similar to that raised by the Marcoses, that is, "that plaintiff had
waived her right to summary judgment" by her act of proceeding to
trial. If, as correctly ruled by the New York court, plaintiff was
allowed to move for summary judgment even after trial and
submission of the case for resolution, more so should we permit it in
the present case where petitioner moved for summary
judgment before trial.
Therefore, the phrase "anytime after the pleading in answer thereto
has been served" in Section 1, Rule 35 of our Rules of Civil
Procedure means "at any stage of the litigation." Whenever it
becomes evident at any stage of the litigation that no triable issue
exists, or that the defenses raised by the defendant(s) are sham or
frivolous, plaintiff may move for summary judgment. A contrary
interpretation would go against the very objective of the Rule on
40

Summary Judgment which is to "weed out sham claims or defenses
thereby avoiding the expense and loss of time involved in a trial."
[68]

In cases with political undertones like the one at bar, adverse parties
will often do almost anything to delay the proceedings in the hope
that a future administration sympathetic to them might be able to
influence the outcome of the case in their favor. This is rank injustice
we cannot tolerate.
The law looks with disfavor on long, protracted and expensive
litigation and encourages the speedy and prompt disposition of
cases. That is why the law and the rules provide for a number of
devices to ensure the speedy disposition of cases. Summary
judgment is one of them.
Faithful therefore to the spirit of the law on summary judgment which
seeks to avoid unnecessary expense and loss of time in a trial, we
hereby rule that petitioner Republic could validly move for summary
judgment any time after the respondents answer was filed or, for
that matter, at any subsequent stage of the litigation. The fact that
petitioner agreed to proceed to trial did not in any way prevent it
from moving for summary judgment, as indeed no genuine issue of
fact was ever validly raised by respondent Marcoses.
This interpretation conforms with the guiding principle enshrined in
Section 6, Rule 1 of the 1997 Rules of Civil Procedure that the
"[r]ules should be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of
every action and proceeding."
[69]

Respondents further allege that the motion for summary judgment
was based on respondents' answer and other documents that had
long been in the records of the case. Thus, by the time the motion
was filed on March 10, 2000, estoppel by laches had already set in
against petitioner.
We disagree. Estoppel by laches is the failure or neglect for an
unreasonable or unexplained length of time to do that which, by
exercising due diligence, could or should have been done earlier,
warranting a presumption that the person has abandoned his right or
declined to assert it.
[70]
In effect, therefore, the principle of laches is
one of estoppel because "it prevents people who have slept on their
rights from prejudicing the rights of third parties who have placed
reliance on the inaction of the original parties and their successors-
in-interest".
[71]

A careful examination of the records, however, reveals that
petitioner was in fact never remiss in pursuing its case against
respondent Marcoses through every remedy available to it, including
the motion for summary judgment.
Petitioner Republic initially filed its motion for summary judgment on
October 18, 1996. The motion was denied because of the pending
compromise agreement between the Marcoses and petitioner. But
during the pre-trial conference, the Marcoses denied ownership of
the Swiss funds, prompting petitioner to file another motion for
summary judgment now under consideration by this Court. It was
the subsequent events that transpired after the answer was filed,
therefore, which prevented petitioner from filing the questioned
motion. It was definitely not because of neglect or inaction that
petitioner filed the (second) motion for summary judgment years
after respondents' answer to the petition for forfeiture.
In invoking the doctrine of estoppel by laches, respondents must
show not only unjustified inaction but also that some unfair injury to
them might result unless the action is barred.
[72]

This, respondents failed to bear out. In fact, during the pre-trial
conference, the Marcoses disclaimed ownership of the Swiss
deposits. Not being the owners, as they claimed, respondents did
not have any vested right or interest which could be adversely
affected by petitioner's alleged inaction.
But even assuming for the sake of argument that laches had already
set in, the doctrine of estoppel or laches does not apply when the
government sues as a sovereign or asserts governmental
rights.
[73]
Nor can estoppel validate an act that contravenes law or
public policy.
[74]

As a final point, it must be emphasized that laches is not a mere
question of time but is principally a question of the inequity or
unfairness of permitting a right or claim to be enforced or
asserted.
[75]
Equity demands that petitioner Republic should not be
barred from pursuing the people's case against the Marcoses.
(2) The Propriety of Forfeiture
The matter of summary judgment having been thus settled, the
issue of whether or not petitioner Republic was able to prove its
case for forfeiture in accordance with the requisites of Sections 2
and 3 of RA 1379 now takes center stage.
The law raises the prima facie presumption that a property is
unlawfully acquired, hence subject to forfeiture, if its amount or value
is manifestly disproportionate to the official salary and other lawful
income of the public officer who owns it. Hence, Sections 2 and 6 of
RA 1379
[76]
provide:
x x x x x x
Section 2. Filing of petition. Whenever any public officer or
employee has acquired during his incumbency an amount or
property which is manifestly out of proportion to his salary as such
public officer or employee and to his other lawful income and the
income from legitimately acquired property, said property shall be
presumed prima facie to have been unlawfully acquired.
x x x x x x
Sec. 6. Judgment If the respondent is unable to show to the
satisfaction of the court that he has lawfully acquired the property in
question, then the court shall declare such property in question,
forfeited in favor of the State, and by virtue of such judgment the
property aforesaid shall become the property of the
State. Provided, That no judgment shall be rendered within six
months before any general election or within three months before
any special election. The Court may, in addition, refer this case to
the corresponding Executive Department for administrative or
criminal action, or both.
From the above-quoted provisions of the law, the following facts
must be established in order that forfeiture or seizure of the Swiss
deposits may be effected:
(1) ownership by the public officer of money or
property acquired during his incumbency, whether it be in his name
or otherwise, and
(2) the extent to which the amount of that money or property
exceeds, i. e., is grossly disproportionate to, the legitimate income of
the public officer.
That spouses Ferdinand and Imelda Marcos were public officials
during the time material to the instant case was never in dispute.
Paragraph 4 of respondent Marcoses' answer categorically admitted
the allegations in paragraph 4 of the petition for forfeiture as to the
personal circumstances of Ferdinand E. Marcos as a public official
who served without interruption as Congressman, Senator, Senate
President and President of the Republic of the Philippines from
December 1, 1965 to February 25, 1986.
[77]
Likewise, respondents
admitted in their answer the contents of paragraph 5 of the petition
as to the personal circumstances of Imelda R. Marcos who once
served as a member of the Interim Batasang Pambansa from 1978
to 1984 and as Metro Manila Governor, concurrently Minister of
Human Settlements, from June 1976 to February 1986.
[78]

Respondent Mrs. Marcos also admitted in paragraph 10 of her
answer the allegations of paragraph 11 of the petition for forfeiture
which referred to the accumulated salaries of respondents
Ferdinand E. Marcos and Imelda R. Marcos.
[79]
The combined
accumulated salaries of the Marcos couple were reflected in the
Certification dated May 27, 1986 issued by then Minister of Budget
and Management Alberto Romulo.
[80]
The Certification showed that,
from 1966 to 1985, Ferdinand E. Marcos and Imelda R. Marcos had
accumulated salaries in the amount of P1,570,000 and P718,750,
respectively, or a total of P2,288,750:
Ferdinand E. Marcos, as President
1966-1976 at P60,000/year P660,000
1977-1984 at P100,000/year 800,000
1985 at P110,000/year 110,000
P1,570,00
Imelda R. Marcos, as Minister
41

June 1976-1985 at P75,000/year P718,000
In addition to their accumulated salaries from 1966 to 1985 are the
Marcos couples combined salaries from January to February 1986
in the amount of P30,833.33. Hence, their total accumulated
salaries amounted to P2,319,583.33. Converted to U.S. dollars on
the basis of the corresponding peso-dollar exchange rates prevailing
during the applicable period when said salaries were received, the
total amount had an equivalent value of $304,372.43.
The dollar equivalent was arrived at by using the official annual rates
of exchange of the Philippine peso and the US dollar from 1965 to
1985 as well as the official monthly rates of exchange in January
and February 1986 issued by the Center for Statistical Information of
the Bangko Sentral ng Pilipinas.
Prescinding from the aforesaid admissions, Section 4, Rule 129 of
the Rules of Court provides that:
Section 4. Judicial admissions An admission, verbal or written,
made by a party in the course of the proceedings in the same case
does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such
admission was made.
[81]

It is settled that judicial admissions may be made: (a) in the
pleadings filed by the parties; (b) in the course of the trial either by
verbal or written manifestations or stipulations; or (c) in other stages
of judicial proceedings, as in the pre-trial of the case.
[82]
Thus, facts
pleaded in the petition and answer, as in the case at bar, are
deemed admissions of petitioner and respondents, respectively, who
are not permitted to contradict them or subsequently take a position
contrary to or inconsistent with such admissions.
[83]

The sum of $304,372.43 should be held as the only known lawful
income of respondents since they did not file any Statement of
Assets and Liabilities (SAL), as required by law, from which their net
worth could be determined. Besides, under the 1935 Constitution,
Ferdinand E. Marcos as President could not receive any other
emolument from the Government or any of its subdivisions and
instrumentalities.
[84]
Likewise, under the 1973 Constitution,
Ferdinand E. Marcos as President could not receive during his
tenure any other emolument from the Government or any other
source.
[85]
In fact, his management of businesses, like the
administration of foundations to accumulate funds, was expressly
prohibited under the 1973 Constitution:
Article VII, Sec. 4(2) The President and the Vice-President shall
not, during their tenure, hold any other office except when otherwise
provided in this Constitution, nor may they practice any profession,
participate directly or indirectly in the management of any business,
or be financially interested directly or indirectly in any contract with,
or in any franchise or special privilege granted by the Government or
any other subdivision, agency, or instrumentality thereof, including
any government owned or controlled corporation.
Article VII, Sec. 11 No Member of the National Assembly shall
appear as counsel before any court inferior to a court with appellate
jurisdiction, x x x. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise or
special privilege granted by the Government, or any subdivision,
agency, or instrumentality thereof including any government owned
or controlled corporation during his term of office. He shall not
intervene in any matter before any office of the government for his
pecuniary benefit.
Article IX, Sec. 7 The Prime Minister and Members of the Cabinet
shall be subject to the provision of Section 11, Article VIII hereof and
may not appear as counsel before any court or administrative body,
or manage any business, or practice any profession, and shall also
be subject to such other disqualification as may be provided by law.
Their only known lawful income of $304,372.43 can therefore legally
and fairly serve as basis for determining the existence of a prima
facie case of forfeiture of the Swiss funds.
Respondents argue that petitioner was not able to establish a prima
facie case for the forfeiture of the Swiss funds since it failed to prove
the essential elements under Section 3, paragraphs (c), (d) and (e)
of RA 1379. As the Act is a penal statute, its provisions are
mandatory and should thus be construed strictly against the
petitioner and liberally in favor of respondent Marcoses.
We hold that it was not for petitioner to establish the Marcoses other
lawful income or income from legitimately acquired property for the
presumption to apply because, as between petitioner and
respondents, the latter were in a better position to know if there were
such other sources of lawful income. And if indeed there was such
other lawful income, respondents should have specifically stated the
same in their answer. Insofar as petitioner Republic was concerned,
it was enough to specify the known lawful income of respondents.
Section 9 of the PCGG Rules and Regulations provides that, in
determining prima facie evidence of ill-gotten wealth, the value of
the accumulated assets, properties and other material possessions
of those covered by Executive Order Nos. 1 and 2
must be out of proportion to the known lawful income of such
persons. The respondent Marcos couple did not file any Statement
of Assets and Liabilities (SAL) from which their net worth could be
determined. Their failure to file their SAL was in itself a violation of
law and to allow them to successfully assail the Republic for not
presenting their SAL would reward them for their violation of the law.
Further, contrary to the claim of respondents, the admissions made
by them in their various pleadings and documents were valid. It is of
record that respondents judicially admitted that the money deposited
with the Swiss banks belonged to them.
We agree with petitioner that respondent Marcoses made judicial
admissions of their ownership of the subject Swiss bank deposits in
their answer, the General/Supplemental Agreements, Mrs. Marcos'
Manifestation and Constancia dated May 5, 1999, and the
Undertaking dated February 10, 1999. We take note of the fact that
the Associate Justices of the Sandiganbayan were unanimous in
holding that respondents had made judicial admissions of their
ownership of the Swiss funds.
In their answer, aside from admitting the existence of the subject
funds, respondents likewise admitted ownership thereof. Paragraph
22 of respondents' answer stated:
22. Respondents specifically DENY PARAGRAPH 23 insofar as it
alleges that respondents clandestinely stashed the country's wealth
in Switzerland and hid the same under layers and layers of
foundations and corporate entities for being false, the truth being
that respondents' aforesaid properties were lawfully
acquired.(emphasis supplied)
By qualifying their acquisition of the Swiss bank deposits as lawful,
respondents unwittingly admitted their ownership thereof.
Respondent Mrs. Marcos also admitted ownership of the Swiss bank
deposits by failing to deny under oath the genuineness and due
execution of certain actionable documents bearing her signature
attached to the petition. As discussed earlier, Section 11, Rule
8
[86]
of the 1997 Rules of Civil Procedure provides that material
averments in the complaint shall be deemed admitted when not
specifically denied.
The General
[87]
and Supplemental
[88]
Agreements executed by
petitioner and respondents on December 28, 1993 further bolstered
the claim of petitioner Republic that its case for forfeiture was proven
in accordance with the requisites of Sections 2 and 3 of RA 1379.
The whereas clause in the General Agreement declared that:
WHEREAS, the FIRST PARTY has obtained a judgment from the
Swiss Federal Tribunal on December 21, 1990, that the $356 million
belongs in principle to the Republic of the Philippines provided
certain conditionalities are met, but even after 7 years, the FIRST
PARTY has not been able to procure a final judgment of conviction
against the PRIVATE PARTY.
While the Supplemental Agreement warranted, inter alia, that:
In consideration of the foregoing, the parties hereby agree that the
PRIVATE PARTY shall be entitled to the equivalent of 25% of the
amount that may be eventually withdrawn from said $356 million
Swiss deposits.
The stipulations set forth in the General and Supplemental
Agreements undeniably indicated the manifest intent of respondents
to enter into a compromise with petitioner. Corollarily, respondents
42

willingness to agree to an amicable settlement with the Republic
only affirmed their ownership of the Swiss deposits for the simple
reason that no person would acquiesce to any concession over such
huge dollar deposits if he did not in fact own them.
Respondents make much capital of the pronouncement by this
Court that the General and Supplemental Agreements were null and
void.
[89]
They insist that nothing in those agreements could thus be
admitted in evidence against them because they stood on the same
ground as an accepted offer which, under Section 27, Rule 130
[90]
of
the 1997 Rules of Civil Procedure, provides that in civil cases, an
offer of compromise is not an admission of any liability and is not
admissible in evidence against the offeror.
We find no merit in this contention. The declaration of nullity of said
agreements was premised on the following constitutional and
statutory infirmities: (1) the grant of
criminal immunity to the Marcos heirs was against the law; (2) the
PCGGs commitment to exempt from all forms of taxes the
properties to be retained by the Marcos heirs was against the
Constitution; and (3) the governments undertaking to cause the
dismissal of all cases filed against the Marcoses pending before the
Sandiganbayan and other courts encroached on the powers of the
judiciary. The reasons relied upon by the Court never in the least
bit even touched on the veracity and truthfulness of respondents
admission with respect to their ownership of the Swiss
funds. Besides, having made certain admissions in those
agreements, respondents cannot now deny that they voluntarily
admitted owning the subject Swiss funds, notwithstanding the fact
that the agreements themselves were later declared null and void.
The following observation of Sandiganbayan Justice Catalino
Castaeda, Jr. in the decision dated September 19, 2000 could not
have been better said:
x x x The declaration of nullity of the two agreements rendered the
same without legal effects but it did not detract from the admissions
of the respondents contained therein. Otherwise stated, the
admissions made in said agreements, as quoted above, remain
binding on the respondents.
[91]

A written statement is nonetheless competent as an admission even
if it is contained in a document which is not itself effective for the
purpose for which it is made, either by reason of illegality, or
incompetency of a party thereto, or by reason of not being signed,
executed or delivered. Accordingly, contracts have been held as
competent evidence of admissions, although they may be
unenforceable.
[92]

The testimony of respondent Ferdinand Marcos, Jr. during the
hearing on the motion for the approval of the Compromise
Agreement on April 29, 1998 also lent credence to the allegations
of petitioner Republic that respondents admitted ownership of the
Swiss bank accounts. We quote the salient portions of Ferdinand
Jr.s formal declarations in open court:
ATTY. FERNANDO:
Mr. Marcos, did you ever have any meetings with PCGG Chairman
Magtanggol C. Gunigundo?
F. MARCOS, JR.:
Yes. I have had very many meetings in fact with Chairman.
ATTY. FERNANDO:
Would you recall when the first meeting occurred?
PJ GARCHITORENA:
In connection with what?
ATTY. FERNANDO:
In connection with the ongoing talks to compromise the various
cases initiated by PCGG against your family?
F. MARCOS, JR.:
The nature of our meetings was solely concerned with negotiations
towards achieving some kind of agreement between the Philippine
government and the Marcos family. The discussions that led up to
the compromise agreement were initiated by our then counsel Atty.
Simeon Mesina x x x.
[93]

xxx xxx xxx
ATTY. FERNANDO:
What was your reaction when Atty. Mesina informed you of this
possibility?
F. MARCOS, JR.:
My reaction to all of these approaches is that I am always open, we
are always open, we are very much always in search of resolution to
the problem of the family and any approach that has been made us,
we have entertained. And so my reaction was the same as what I
have always why not? Maybe this is the one that will finally put an
end to this problem.
[94]

xxx xxx xxx
ATTY. FERNANDO:
Basically, what were the true amounts of the assets in the bank?
PJ GARCHITORENA:
So, we are talking about liquid assets here? Just Cash?
F. MARCOS, JR.:
Well, basically, any assets. Anything that was under the Marcos
name in any of the banks in Switzerland which may necessarily be
not cash.
[95]

xxx xxx xxx
PJ GARCHITORENA:
x x x What did you do in other words, after being apprised of this
contract in connection herewith?
F. MARCOS, JR.:
I assumed that we are beginning to implement the agreement
because this was forwarded through the Philippine government
lawyers through our lawyers and then, subsequently, to me. I was a
little surprised because we hadnt really discussed the details of the
transfer of the funds, what the bank accounts, what the mechanism
would be. But nevertheless, I was happy to see that as far as the
PCGG is concerned, that the agreement was perfected and that we
were beginning to implement it and that was a source of satisfaction
to me because I thought that finally it will be the end.
[96]

Ferdinand Jr.'s pronouncements, taken in context and in their
entirety, were a confirmation of respondents recognition of their
ownership of the Swiss bank deposits. Admissions of a party in his
testimony are receivable against him. If a party, as a witness,
deliberately concedes a fact, such concession has the force of a
judicial admission.
[97]
It is apparent from Ferdinand Jr.s testimony
that the Marcos family agreed to negotiate with the Philippine
government in the hope of finally putting an end to the problems
besetting the Marcos family regarding the Swiss accounts. This was
doubtlessly an acknowledgment of ownership on their part. The rule
is that the testimony on the witness stand partakes of the nature of a
formal judicial admission when a party testifies clearly and
unequivocally to a fact which is peculiarly within his own
knowledge.
[98]

In her Manifestation
[99]
dated May 26, 1998, respondent Imelda
Marcos furthermore revealed the following:
That respondent Imelda R. Marcos owns 90% of the subject matter
of the above-entitled case, being the sole beneficiary of the dollar
deposits in the name of the various foundations alleged in the case;
That in fact only 10% of the subject matter in the above-entitled case
belongs to the estate of the late President Ferdinand E. Marcos;
xxx xxx xxx
Respondents ownership of the Swiss bank accounts as borne out
by Mrs. Marcos' manifestation is as bright as sunlight. And her claim
that she is merely a beneficiary of the Swiss deposits is belied by
her own signatures on the appended copies of the documents
substantiating her ownership of the funds in the name of the
foundations. As already mentioned, she failed to specifically deny
under oath the authenticity of such documents, especially those
involving William Saunders and Jane Ryan which actually
referred to Ferdinand Marcos and Imelda Marcos,
respectively. That failure of Imelda Marcos to specifically deny the
existence, much less the genuineness and due execution, of the
instruments bearing her signature, was tantamount to a judicial
admission of the genuineness and due execution of said
instruments, in accordance with Section 8, Rule 8
[100]
of the 1997
Rules of Civil Procedure.
43

Likewise, in her Constancia
[101]
dated May 6, 1999, Imelda Marcos
prayed for the approval of the Compromise Agreement and the
subsequent release and transfer of the $150 million to the rightful
owner. She further made the following manifestations:
xxx xxx xxx
2. The Republics cause of action over the full amount is its
forfeiture in favor of the government if found to be ill-gotten. On the
other hand, the Marcoses defend that it is a legitimate
asset. Therefore, both parties have an inchoate right of ownership
over the account. If it turns out that the account is of lawful origin,
the Republic may yield to the Marcoses. Conversely, the Marcoses
must yield to the Republic. (underscoring supplied)
xxx xxx xxx
3. Consistent with the foregoing, and the Marcoses having
committed themselves to helping the less fortunate, in the interest of
peace, reconciliation and unity, defendant MADAM IMELDA
ROMUALDEZ MARCOS, in firm abidance thereby, hereby affirms
her agreement with the Republic for the release and transfer of the
US Dollar 150 million for proper disposition, without prejudice to the
final outcome of the litigation respecting the ownership of the
remainder.
Again, the above statements were indicative of Imeldas admission
of the Marcoses ownership of the Swiss deposits as in fact the
Marcoses defend that it (Swiss deposits) is a legitimate (Marcos)
asset.
On the other hand, respondents Maria Imelda Marcos-Manotoc,
Ferdinand Marcos, Jr. and Maria Irene Marcos-Araneta filed a
motion
[102]
on May 4, 1998 asking the Sandiganbayan to place
the res (Swiss deposits) in custodia legis:
7. Indeed, the prevailing situation is fraught with danger! Unless the
aforesaid Swiss deposits are placed in custodia legis or within the
Courts protective mantle, its dissipation or misappropriation by the
petitioner looms as a distinct possibility.
Such display of deep, personal interest can only come from
someone who believes that he has a marked and intimate right over
the considerable dollar deposits. Truly, by filing said motion, the
Marcos children revealed their ownership of the said deposits.
Lastly, the Undertaking
[103]
entered into by the PCGG, the PNB and
the Marcos foundations on February 10, 1999, confirmed the
Marcoses ownership of the Swiss bank deposits. The subject
Undertaking brought to light their readiness to pay the human rights
victims out of the funds held in escrow in the PNB. It stated:
WHEREAS, the Republic of the Philippines sympathizes with the
plight of the human rights victims-plaintiffs in the aforementioned
litigation through the Second Party, desires to assist in the
satisfaction of the judgment awards of said human rights victims-
plaintiffs, by releasing, assigning and or waiving US$150 million of
the funds held in escrow under the Escrow Agreements dated
August 14, 1995, although the Republic is not obligated to do so
under final judgments of the Swiss courts dated December 10 and
19, 1997, and January 8, 1998;
WHEREAS, the Third Party is likewise willing to release, assign
and/or waive all its rights and interests over said US$150 million to
the aforementioned human rights victims-plaintiffs.
All told, the foregoing disquisition negates the claim of respondents
that petitioner failed to prove that they acquired or own the Swiss
funds and that it was only by arbitrarily isolating and taking certain
statements made by private respondents out of context that
petitioner was able to treat these as judicial admissions. The Court
is fully aware of the relevance, materiality and implications of every
pleading and document submitted in this case. This Court carefully
scrutinized the proofs presented by the parties. We analyzed,
assessed and weighed them to ascertain if each piece of evidence
rightfully qualified as an admission. Owing to the far-reaching
historical and political implications of this case, we considered and
examined, individually and totally, the evidence of the parties, even
if it might have bordered on factual adjudication which, by authority
of the rules and jurisprudence, is not usually done by this
Court. There is no doubt in our mind that respondent Marcoses
admitted ownership of the Swiss bank deposits.
We have always adhered to the familiar doctrine that an admission
made in the pleadings cannot be controverted by the party making
such admission and becomes conclusive on him, and that all proofs
submitted by him contrary thereto or inconsistent therewith should
be ignored, whether an objection is interposed by the adverse party
or not.
[104]
This doctrine is embodied in Section 4, Rule 129 of the
Rules of Court:
SEC. 4. Judicial admissions. An admission, verbal or written,
made by a party in the course of the proceedings in the same case,
does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such
admission was made.
[105]

In the absence of a compelling reason to the contrary, respondents
judicial admission of ownership of the Swiss deposits is definitely
binding on them.
The individual and separate admissions of each respondent bind all
of them pursuant to Sections 29 and 31, Rule 130 of the Rules of
Court:
SEC. 29. Admission by co-partner or agent. The act or
declaration of a partner or agent of the party within the scope of his
authority and during the existence of the partnership or agency, may
be given in evidence against such party after the partnership or
agency is shown by evidence other than such act or
declaration. The same rule applies to the act or declaration of a joint
owner, joint debtor, or other person jointly interested with the
party.
[106]

SEC. 31. Admission by privies. Where one derives title to
property from another, the act, declaration, or omission of the latter,
while holding the title, in relation to the property, is evidence against
the former.
[107]

The declarations of a person are admissible against a party
whenever a privity of estate exists between the declarant and the
party, the term privity of estate generally denoting a succession in
rights.
[108]
Consequently, an admission of one in privity with a party
to the record is competent.
[109]
Without doubt, privity exists among
the respondents in this case. And where several co-parties to the
record are jointly interested in the subject matter of the controversy,
the admission of one is competent against all.
[110]

Respondents insist that the Sandiganbayan is correct in ruling that
petitioner Republic has failed to establish a prima facie case for the
forfeiture of the Swiss deposits.
We disagree. The sudden turn-around of the Sandiganbayan was
really strange, to say the least, as its findings and conclusions were
not borne out by the voluminous records of this case.
Section 2 of RA 1379 explicitly states that whenever any public
officer or employee has acquired during his incumbency an amount
of property which is manifestly out of proportion to his salary as such
public officer or employee and to his other lawful income and the
income from legitimately acquired property, said property shall be
presumed prima facie to have been unlawfully acquired. x x x
The elements which must concur for this prima facie presumption to
apply are:
(1) the offender is a public officer or employee;
(2) he must have acquired a considerable amount of money
or property during his incumbency; and
(3) said amount is manifestly out of proportion to his salary as
such public officer or employee and to his other lawful income and
the income from legitimately acquired property.
It is undisputed that spouses Ferdinand and Imelda Marcos were
former public officers. Hence, the first element is clearly extant.
The second element deals with the amount of money or property
acquired by the public officer during his incumbency. The Marcos
couple indubitably acquired and owned properties during their term
of office. In fact, the five groups of Swiss accounts were admittedly
owned by them. There is proof of the existence and ownership of
these assets and properties and it suffices to comply with the
second element.
44

The third requirement is met if it can be shown that such assets,
money or property is manifestly out of proportion to the public
officers salary and his other lawful income. It is the proof of this
third element that is crucial in determining whether a prima
facie presumption has been established in this case.
Petitioner Republic presented not only a schedule indicating the
lawful income of the Marcos spouses during their incumbency but
also evidence that they had huge deposits beyond such lawful
income in Swiss banks under the names of five different
foundations. We believe petitioner was able to establish the prima
facie presumption that the assets and properties acquired by the
Marcoses were manifestly and patently disproportionate to their
aggregate salaries as public officials. Otherwise stated, petitioner
presented enough evidence to convince us that the Marcoses had
dollar deposits amounting to US $356 million representing the
balance of the Swiss accounts of the five foundations, an amount
way, way beyond their aggregate legitimate income of only
US$304,372.43 during their incumbency as government officials.
Considering, therefore, that the total amount of the Swiss deposits
was considerably out of proportion to the known lawful income of the
Marcoses, the presumption that said dollar deposits were unlawfully
acquired was duly established. It was sufficient for the petition for
forfeiture to state the approximate amount of money and property
acquired by the respondents, and their total government
salaries. Section 9 of the PCGG Rules and Regulations states:
Prima Facie Evidence. Any accumulation of assets, properties,
and other material possessions of those persons covered by
Executive Orders No. 1 and No. 2, whose value is out of proportion
to their known lawful income is prima facie deemed ill-gotten wealth.
Indeed, the burden of proof was on the respondents to dispute this
presumption and show by clear and convincing evidence that the
Swiss deposits were lawfully acquired and that they had other
legitimate sources of income. A presumption is prima facie proof of
the fact presumed and, unless the fact thus prima facie established
by legal presumption is disproved, it must stand as proved.
[111]

Respondent Mrs. Marcos argues that the foreign foundations should
have been impleaded as they were indispensable parties without
whom no complete determination of the issues could be made. She
asserts that the failure of petitioner Republic to implead the
foundations rendered the judgment void as the joinder of
indispensable parties was a sine qua non exercise of judicial
power. Furthermore, the non-inclusion of the foreign foundations
violated the conditions prescribed by the Swiss government
regarding the deposit of the funds in escrow, deprived them of their
day in court and denied them their rights under the Swiss
constitution and international law.
[112]

The Court finds that petitioner Republic did not err in not impleading
the foreign foundations. Section 7, Rule 3 of the 1997 Rules of Civil
Procedure,
[113]
taken from Rule 19b of the American Federal Rules
of Civil Procedure, provides for the compulsory joinder of
indispensable parties. Generally, an indispensable party must be
impleaded for the complete determination of the suit. However,
failure to join an indispensable party does not divest the court of
jurisdiction since the rule regarding indispensable parties is founded
on equitable considerations and is not jurisdictional. Thus, the court
is not divested of its power to render a decision even in the absence
of indispensable parties, though such judgment is not binding on the
non-joined party.
[114]

An indispensable party
[115]
has been defined as one:
[who] must have a direct interest in the litigation; and if this interest
is such that it cannot be separated from that of the parties to the
suit, if the court cannot render justice between the parties in his
absence, if the decree will have an injurious effect upon his interest,
or if the final determination of the controversy in his absence will be
inconsistent with equity and good conscience.
There are two essential tests of an indispensable party: (1) can relief
be afforded the plaintiff without the presence of the other party? and
(2) can the case be decided on its merits without prejudicing the
rights of the other party?
[116]
There is, however, no fixed formula for
determining who is an indispensable party; this can only be
determined in the context and by the facts of the particular suit or
litigation.
In the present case, there was an admission by respondent Imelda
Marcos in her May 26, 1998 Manifestation before the
Sandiganbayan that she was the sole beneficiary of 90% of the
subject matter in controversy with the remaining 10% belonging to
the estate of Ferdinand Marcos.
[117]
Viewed against this admission,
the foreign foundations were not indispensable parties. Their non-
participation in the proceedings did not prevent the court from
deciding the case on its merits and according full relief to petitioner
Republic. The judgment ordering the return of the $356 million was
neither inimical to the foundations interests nor inconsistent with
equity and good conscience. The admission of respondent Imelda
Marcos only confirmed what was already generally known: that the
foundations were established precisely to hide the money stolen by
the Marcos spouses from petitioner Republic. It negated whatever
illusion there was, if any, that the foreign foundations owned even a
nominal part of the assets in question.
The rulings of the Swiss court that the foundations, as formal
owners, must be given an opportunity to participate in the
proceedings hinged on the assumption that they owned a nominal
share of the assets.
[118]
But this was already refuted by no less than
Mrs. Marcos herself. Thus, she cannot now argue that the ruling of
the Sandiganbayan violated the conditions set by the Swiss court.
The directive given by the Swiss court for the foundations to
participate in the proceedings was for the purpose of protecting
whatever nominal interest they might have had in the assets as
formal owners. But inasmuch as their ownership was subsequently
repudiated by Imelda Marcos, they could no longer be considered as
indispensable parties and their participation in the proceedings
became unnecessary.
In Republic vs. Sandiganbayan,
[119]
this Court ruled that impleading
the firms which are the res of the action was unnecessary:
And as to corporations organized with ill-gotten wealth, but are not
themselves guilty of misappropriation, fraud or other illicit conduct
in other words, the companies themselves are not the object or thing
involved in the action, the res thereof there is no need to implead
them either. Indeed, their impleading is not proper on the strength
alone of their having been formed with ill-gotten funds, absent any
other particular wrongdoing on their part
Such showing of having been formed with, or having received ill-
gotten funds, however strong or convincing, does not, without more,
warrant identifying the corporations in question with the person who
formed or made use of them to give the color or appearance of
lawful, innocent acquisition to illegally amassed wealth at the least,
not so as place on the Government the onus of impleading the
former with the latter in actions to recover such wealth.
Distinguished in terms of juridical personality and legal culpability
from their erring members or stockholders, said corporations are not
themselves guilty of the sins of the latter, of the embezzlement,
asportation, etc., that gave rise to the Governments cause of action
for recovery; their creation or organization was merely the result of
their members (or stockholders) manipulations and maneuvers to
conceal the illegal origins of the assets or monies invested therein.
In this light, they are simply the res in the actions for the recovery of
illegally acquired wealth, and there is, in principle, no cause of action
against them and no ground to implead them as defendants in said
actions.
Just like the corporations in the aforementioned case, the foreign
foundations here were set up to conceal the illegally acquired funds
of the Marcos spouses. Thus, they were simply the res in the action
for recovery of ill-gotten wealth and did not have to be impleaded for
lack of cause of action or ground to implead them.
Assuming arguendo, however, that the foundations were
indispensable parties, the failure of petitioner to implead them was a
curable error, as held in the previously cited case of Republic vs.
Sandiganbayan:
[120]

45

Even in those cases where it might reasonably be argued that the
failure of the Government to implead the sequestered corporations
as defendants is indeed a procedural abberation, as where said
firms were allegedly used, and actively cooperated with the
defendants, as instruments or conduits for conversion of public
funds and property or illicit or fraudulent obtention of favored
government contracts, etc., slight reflection would nevertheless lead
to the conclusion that the defect is not fatal, but one correctible
under applicable adjective rules e.g., Section 10, Rule 5 of the
Rules of Court [specifying the remedy of amendment during trial to
authorize or to conform to the evidence]; Section 1, Rule 20
[governing amendments before trial], in relation to the rule
respecting omission of so-called necessary or indispensable parties,
set out in Section 11, Rule 3 of the Rules of Court. It is relevant in
this context to advert to the old familiar doctrines that the omission
to implead such parties is a mere technical defect which can be
cured at any stage of the proceedings even after judgment; and
that, particularly in the case of indispensable parties, since their
presence and participation is essential to the very life of the action,
for without them no judgment may be rendered, amendments of the
complaint in order to implead them should be freely allowed, even
on appeal, in fact even after rendition of judgment by this Court,
where it appears that the complaint otherwise indicates their identity
and character as such indispensable parties.
[121]

Although there are decided cases wherein the non-joinder of
indispensable parties in fact led to the dismissal of the suit or the
annulment of judgment, such cases do not jibe with the matter at
hand. The better view is that non-joinder is not a ground to dismiss
the suit or annul the judgment. The rule on joinder of indispensable
parties is founded on equity. And the spirit of the law is reflected in
Section 11, Rule 3
[122]
of the 1997 Rules of Civil Procedure. It
prohibits the dismissal of a suit on the ground of non-joinder or
misjoinder of parties and allows the amendment of the complaint at
any stage of the proceedings, through motion or on order of the
court on its own initiative.
[123]

Likewise, jurisprudence on the Federal Rules of Procedure, from
which our Section 7, Rule 3
[124]
on indispensable parties was copied,
allows the joinder of indispensable parties even after judgment has
been entered if such is needed to afford the moving party full
relief.
[125]
Mere delay in filing the joinder motion does not necessarily
result in the waiver of the right as long as the delay is
excusable.
[126]
Thus, respondent Mrs. Marcos cannot correctly argue
that the judgment rendered by the Sandiganbayan was void due to
the non-joinder of the foreign foundations. The court had jurisdiction
to render judgment which, even in the absence of indispensable
parties, was binding on all the parties before it though not on the
absent party.
[127]
If she really felt that she could not be granted full
relief due to the absence of the foreign foundations, she should have
moved for their inclusion, which was allowable at any stage of the
proceedings. She never did. Instead she assailed the judgment
rendered.
In the face of undeniable circumstances and the avalanche of
documentary evidence against them, respondent Marcoses failed to
justify the lawful nature of their acquisition of the said
assets. Hence, the Swiss deposits should be considered ill-gotten
wealth and forfeited in favor of the State in accordance with Section
6 of RA 1379:
SEC. 6. Judgment. If the respondent is unable to show to the
satisfaction of the court that he has lawfully acquired the property in
question, then the court shall declare such property forfeited in favor
of the State, and by virtue of such judgment the property aforesaid
shall become property of the State x x x.
THE FAILURE TO PRESENT AUTHENTICATED
TRANSLATIONS OF THE SWISS DECISIONS
Finally, petitioner Republic contends that the Honorable
Sandiganbayan Presiding Justice Francis Garchitorena committed
grave abuse of discretion in reversing himself on the ground that the
original copies of the authenticated Swiss decisions and their
authenticated translations were not submitted to the court a
quo. Earlier PJ Garchitorena had quoted extensively from the
unofficial translation of one of these Swiss decisions in
his ponencia dated July 29, 1999 when he denied the motion to
release US$150 Million to the human rights victims.
While we are in reality perplexed by such an incomprehensible
change of heart, there might nevertheless not be any real need to
belabor the issue. The presentation of the authenticated
translations of the original copies of the Swiss decision was not de
rigueur for the public respondent to make findings of fact and reach
its conclusions. In short, the Sandiganbayans decision was not
dependent on the determination of the Swiss courts. For that matter,
neither is this Courts.
The release of the Swiss funds held in escrow in the PNB is
dependent solely on the decision of this jurisdiction that said funds
belong to the petitioner Republic. What is important is our own
assessment of the sufficiency of the evidence to rule in favor of
either petitioner Republic or respondent Marcoses. In this instance,
despite the absence of the authenticated translations of the Swiss
decisions, the evidence on hand tilts convincingly in favor of
petitioner Republic.
WHEREFORE, the petition is hereby GRANTED. The assailed
Resolution of the Sandiganbayan dated January 31, 2002 is SET
ASIDE. The Swiss deposits which were transferred to and are now
deposited in escrow at the Philippine National Bank in the estimated
aggregate amount of US$658,175,373.60 as of January 31, 2002,
plus interest, are hereby forfeited in favor of petitioner Republic of
the Philippines









EN BANC

THE PROVINCE OF NORTH COTABATO, duly
represented by GOVERNOR JESUS SACDALAN
and/or VICE-GOVERNOR EMMANUEL PIOL, for
and in his own behalf,
Petitioners,


- versus -


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 ofZamboanga,
Petitioners,

G.R. No. 183591

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, &
BRION, JJ.

Promulgated:

October 14, 2008







46


- versus -


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,


- versus


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,


- versus -


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,
G.R. No. 183752




























G.R. No. 183893

























G.R. No. 183951















- versus -


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, BASILANPROVINCE,
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



































G.R. No. 183962
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - -x

D E C I S I O N

CARPIO MORALES, J .:

Subject of these consolidated cases is the extent of the
powers of the President in pursuing the peace process. While the
facts surrounding this controversy center on the armed conflict
in Mindanao between the government and the Moro Islamic
47

Liberation Front (MILF), the legal issue involved has a bearing on all
areas in the country where there has been a long-standing armed
conflict. Yet again, the Court is tasked to perform a delicate
balancing act. It must uncompromisingly delineate the bounds
within which the President may lawfully exercise her discretion, but it
must do so in strict adherence to the Constitution, lest its ruling
unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to pursue
the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS


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

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


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

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

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


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

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


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


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

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

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


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

II. STATEMENT OF THE PROCEEDINGS


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

Commonly impleaded as respondents are the GRP Peace
Panel on Ancestral Domain
[7]
and the Presidential Adviser on the
Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato
[8]
and Vice-
Governor Emmanuel Piol filed a petition, docketed as G.R. No.
183591, for Mandamus and Prohibition with Prayer for the Issuance
of Writ of Preliminary Injunction and Temporary Restraining
Order.
[9]
Invoking the right to information on matters of public
concern, petitioners seek to compel respondents to disclose and
furnish them the complete and official copies of the MOA-AD
including its attachments, and to prohibit the slated signing of the
MOA-AD, pending the disclosure of the contents of the MOA-AD
and the holding of a public consultation thereon. Supplementarily,
petitioners pray that the MOA-AD be declared unconstitutional.
[10]


This initial petition was followed by another one, docketed
as G.R. No. 183752, also for Mandamus and Prohibition
[11]
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.

48

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 Iligan
[16]
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 members
[18]
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 Isabela
[21]
and Mayor Cherrylyn Santos-Akbar, the Province of
Sultan Kudarat
[22]
and Gov. Suharto Mangudadatu, the Municipality
of Linamon in Lanao del Norte,
[23]
Ruy Elias Lopez of Davao City
and of the Bagobo tribe, Sangguniang Panlungsod member Marino
Ridao and businessman Kisin Buxani, both of Cotabato City; and
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance
Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement
for Peace and Development (MMMPD) filed their respective
Comments-in-Intervention.

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

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

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

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the Memorandum of
Agreement (MOA); and

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

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

3. Whether respondent Government of the Republic of the
Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and
initiated the MOA vis--vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the peoples right to information
on matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions involving
public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL
GOVERNMENT CODE OF 1991)[;]

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

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

a) to create and recognize the Bangsamoro Juridical Entity (BJE)
as a separate state, or a juridical, territorial or political subdivision
not recognized by law;

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

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

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

6. Whether the inclusion/exclusion of the Province of North
Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas covered
by the projected Bangsamoro Homeland is a justiciable question;
and

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


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

III. OVERVIEW OF THE MOA-AD

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

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

Under the heading Terms of Reference (TOR), the MOA-AD
includes not only four earlier agreements between the GRP and
MILF, but also two agreements between the GRP and the MNLF:
49

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


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

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

A. CONCEPTS AND PRINCIPLES

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


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

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


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


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


The MOA-AD goes on to describe the Bangsamoro people as
the First Nation with defined territory and with a system of
government having entered into treaties of amity and commerce with
foreign nations.
The term First Nation is of Canadian origin referring to the
indigenous peoples of that territory, particularly those known as
Indians. In Canada, each of these indigenous peoples is equally
entitled to be called First Nation, hence, all of them are usually
described collectively by the plural First Nations.
[36]
To that extent,
the MOA-AD, by identifying the Bangsamoro people as the First
Nation suggesting its exclusive entitlement to that designation
departs from the Canadian usage of the term.

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




B. TERRITORY

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


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


Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two
categories, Category A and Category B. Each of these areas is to
50

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 jointjurisdiction, authority and management over all natural
resources.
[43]
Notably, the jurisdiction over the internal waters is not
similarly described as joint.

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

C. RESOURCES

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


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


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


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

The MOA-AD provides that legitimate grievances of the
Bangsamoro people arising from any unjust dispossession of their
territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no
longer possible, reparation is to be in such form as mutually
determined by the Parties.
[50]


The BJE may modify or cancel the forest concessions,
timber licenses, contracts or agreements, mining concessions,
Mineral Production and Sharing Agreements (MPSA), Industrial
Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those
issued by the present ARMM.
[51]


D. GOVERNANCE

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


The associative relationship
between the Central Government
and the BJE

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

The MOA-AD provides that its provisions requiring
amendments to the existing legal framework shall take effect upon
signing of the Comprehensive Compact and upon effecting the
aforesaid amendments, with due regard to the non-derogation of
prior agreementsand 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.
51


IV. PROCEDURAL ISSUES


A. RIPENESS


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


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


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


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

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

x x x x

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


The Solicitor General cites
[63]
the following provisions of the MOA-
AD:

TERRITORY

x x x x

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

d. Without derogating from the requirements of prior agreements,
the Government stipulates to conduct and deliver, using all possible
legal measures, within twelve (12) months following the signing of
the MOA-AD, a plebiscite covering the areas as enumerated in the
list and depicted in the map as Category A attached herein (the
Annex). The Annex constitutes an integral part of this framework
agreement. Toward this end, the Parties shall endeavor to complete
the negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from the signing
of the MOA-AD.

x x x x

GOVERNANCE

x x x x

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

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


The Solicitor Generals arguments fail to persuade.

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

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

x x x x

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



In Santa Fe Independent School District v. Doe,
[67]
the United States
Supreme Court held that the challenge to the constitutionality of the
schools policy allowing student-led prayers and speeches before
games was ripe for adjudication, even if no public prayer had yet
been led under the policy, because the policy was being challenged
as unconstitutional on its face.
[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]


52

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


The authority of the GRP Negotiating Panel is defined by Executive
Order No. 3 (E.O. No. 3), issued on February 28, 2001.
[75]
The said
executive order requires that [t]he government's policy framework
for peace, including the systematic approach and the administrative
structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order.
[76]


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

Furthermore, the petitions allege that the provisions of the MOA-
AD violate the Constitution. The MOA-AD provides that any
provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes
to the legal framework, implying an amendment of the Constitution
to accommodate the MOA-AD. This stipulation, in
effect, guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its
authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of
respondent that exceed their authority, by violating their duties
under E.O. No. 3 and the provisions of the Constitution and
statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe
for adjudication exists. When an act of a branch of government is
seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle
the dispute.
[77]


B. LOCUS STANDI


For a party to have locus standi, one must allege such a
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult
constitutional questions.
[78]


Because constitutional cases are often public actions in which
the relief sought is likely to affect other persons, a preliminary
question frequently arises as to this interest in the constitutional
question raised.
[79]


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


For a taxpayer, one is allowed to sue where there is an
assertion that public funds are illegally disbursed or deflected to an
illegal purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.
[82]
The Court
retains discretion whether or not to allow a taxpayers 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
Courts 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.
53


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 publics 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.

B. MOOTNESS

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


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


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


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


The present petitions fall squarely into these exceptions to
thus thrust them into the domain of judicial review. The grounds
cited above in David are just as applicable in the present cases as
they were, not only in David, but also in Province of Batangas v.
Romulo
[100]
and Manalo v. Calderon
[101]
where the Court similarly
decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.

Petitions not mooted


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

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

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

Petitions are imbued with paramount public interest


There is no gainsaying that the petitions are imbued with
paramount public interest, involving a significant part of the countrys
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 partiesthe government and a
private foreign corporation. As the issues therein involved specific
government procurement policies and standard principles on
contracts, the majority opinion in Suplico found nothing exceptional
therein, the factual circumstances being peculiar only to the
transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part
of a series of agreements necessary to carry out
54

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

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

Need to formulate principles-guidelines

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

Respondents invite the Courts attention to the separate
opinion of then Chief Justice Artemio Panganiban in Sanlakas v.
Reyes
[104]
in which he stated that the doctrine of capable of
repetition yet evading review can override mootness, provided the
party raising it in a proper case has been and/or continue to be
prejudiced or damaged as a direct result of their issuance. They
contend that the Court must have jurisdiction over the subject matter
for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which
this Court exercises original jurisdiction. While G.R. No. 183893
(City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far
reaching implications and raises questions that need to be
resolved.
[105]
At all events, the Court has jurisdiction over most if not
the rest of the petitions.

Indeed, the present petitions afford a proper venue for the
Court to again apply the doctrine immediately referred to as what it
had done in a number of landmark cases.
[106]
There is
a reasonable expectation that petitioners, particularly the Provinces
of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the
Cities of Zamboanga, Iligan and Isabela, and the Municipality of
Linamon, will again be subjected to the same problem in the future
as respondents actions are capable of repetition, in another or any
form.

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


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

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

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

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on
matters of public concern, as provided in Section 7, Article III on
the Bill of Rights:

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



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

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


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

x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of information
in a democracy. There can be no realistic perception by the public
of the nations 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 x
[111]



In the same way that free discussion enables members of
society to cope with the exigencies of their time, access to
information of general interest aids the people in democratic
decision-making by giving them a better perspective of the vital
issues confronting the nation
[112]
so that they may be able to criticize
and participate in the affairs of the government in a responsible,
reasonable and effective manner. It is by ensuring an unfettered
and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by
the people.
[113]


The MOA-AD is a matter of public concern


That the subject of the information sought in the present cases is a
matter of public concern
[114]
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
55

officials,
[119]
therecovery of the Marcoses alleged ill-gotten
wealth,
[120]
and the identity of party-list nominees,
[121]
among others,
are matters of public concern. Undoubtedly, the MOA-AD subject
of the present cases is of public concern, involving as it does
the sovereignty and territorial integrity of the State, which
directly affects the lives of the public at large.

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

x x x [T]he right to information contemplates inclusion of
negotiations leading to the consummation of the
transaction. Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise,
the people can never exercise the right if no contract is
consummated, and if one is consummated, it may be too late for the
public to expose its defects.

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


Intended as a splendid symmetry
[123]
to the right to
information under the Bill of Rights is the policy of
public disclosure under Section 28, Article II of the Constitution
reading:

Sec. 28. Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full public disclosure of
all its transactions involving public interest.
[124]


The policy of full public disclosure enunciated in above-quoted
Section 28 complements the right of access to information on
matters of public concern found in the Bill of Rights. The right to
information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to
give information even if nobody demands.
[125]


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


Whether Section 28 is self-executory, the records of the
deliberations of the Constitutional Commission so disclose:

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

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



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

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

MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that the
safeguards on national interest are modified by the clause as may
be provided by law

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

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


Indubitably, the effectivity of the policy of public
disclosure need not await the passing of a statute. As Congress
cannot revoke this principle, it is merely directed to provide for
reasonable safeguards. The complete and effective exercise of
the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory
nature. Since both provisions go hand-in-hand, it is absurd to say
that the broader
[130]
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 peoples
will.
[131]
Envisioned to be corollary to the twin rights to information
and disclosure is the design for feedback mechanisms.

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

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

x x x x

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

I think when we talk about the feedback network, we are not
talking about public officials but also network of private
business o[r] community-based organizations that will be
56

reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid that
there will be another OMA in the making.
[132]
(Emphasis supplied)

The imperative of a public consultation, as a species of the
right to information, is evident in the marching orders to
respondents. The mechanics for the duty to disclose information
and to conduct public consultation regarding the peace agenda and
process is manifestly provided by E.O. No. 3.
[133]
The preambulatory
clause of E.O. No. 3 declares that there is a need to further enhance
the contribution of civil society to the comprehensive peace process
by institutionalizing the peoples 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 peoples participation in the peace
process.
[135]


Clearly, E.O. No. 3 contemplates not just the conduct of
a plebiscite to effectuate continuing consultations, contrary
to respondents position that plebiscite is more than sufficient
consultation.
[136]


Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to [c]onduct regular
dialogues with the National Peace Forum (NPF) and other peace
partners to seek relevant information, comments, recommendations
as well as to render appropriate and timely reports on the progress
of the comprehensive peace process.
[137]
E.O. No. 3 mandates the
establishment of the NPF to be the principal forum for the PAPP to
consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local
levels, on the implementation of the comprehensive peace process,
as well as for government[-]civil society dialogue and consensus-
building on peace agenda and initiatives.
[138]


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

PAPP Esperon committed grave abuse of discretion


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

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


Petitioners are not claiming a seat at the negotiating table,
contrary to respondents retort in justifying the denial of petitioners
right to be consulted. Respondents stance manifests the manner
by which they treat the salient provisions of E.O. No. 3 on peoples
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. 3s explicit provisions
on continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the
publics 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 Courts August 4, 2008 Resolution, without a
prayer for the documents disclosure in camera, or without a
manifestation that it was complying therewith ex abundante ad
cautelam.

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

Prior Consultations Required. No project or program
shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects
are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the
provisions of the Constitution.
[143]
(Italics and underscoring supplied)


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

With respect to the indigenous cultural
communities/indigenous peoples (ICCs/IPs), whose interests are
represented herein by petitioner Lopez and are adversely affected
by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to
participate fully at all levels of decision-making in matters which may
affect their rights, lives and destinies.
[147]
The MOA-AD, an
instrument recognizing ancestral domain, failed to justify its non-
compliance with the clear-cut mechanisms ordained in said
Act,
[148]
which entails, among other things, the observance of the
free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department
or any government agency the power to delineate and recognize an
ancestral domain claim by mere agreement or compromise. The
recognition of the ancestral domain is the raison detre of the MOA-
AD, without which all other stipulations or consensus points
57

necessarily must fail. In proceeding to make a sweeping declaration
on ancestral domain, without complying with the IPRA, which is cited
as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even
the heart of the MOA-AD is still subject to necessary changes to the
legal framework. While paragraph 7 on Governance suspends the
effectivity of all provisions requiring changes to the legal framework,
such clause is itself invalid, as will be discussed in the following
section.

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



ON THE SECOND SUBSTANTIVE ISSUE


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

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


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

Association is referred to in paragraph 3 on TERRITORY,
paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision, however, that
the MOA-AD most clearly uses it to describe the envisioned
relationship between the BJE and the Central Government.

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

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

Keitner and Reisman state that

[a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state, the
associate, delegates certain responsibilities to the other, the
principal, while maintaining its international status as a state.
Free associations represent a middle ground between
integration and independence. x x x
[150]
(Emphasis and
underscoring supplied)


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

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

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

It bears noting that in U.S. constitutional and international
practice, free association is understood as an international
association between sovereigns. The Compact of Free Association
is a treaty which is subordinate to the associated nations 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 areAntigua, 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 BJEs capacity to enter into economic
and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJEs participation in meetings
and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external
58

defense. Moreover, the BJEs right to participate in Philippine
official missions bearing on negotiation of border agreements,
environmental protection, and sharing of revenues pertaining to the
bodies of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the governments
of FSM and the Marshall Islands to be consulted by the U.S.
government on any foreign affairs matter affecting them.

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

The concept
of association is not recognized under the present
Constitution


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

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

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

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


The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution


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

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

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

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

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


The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution

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

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

(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the
region. (Underscoring supplied)


Again on the premise that the BJE may be regarded as an
autonomous region, the MOA-AD would require an amendment that
would expand the above-quoted provision. The mere passage of
new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that
might vest in the BJE the powers found in the MOA-AD must, itself,
comply with other provisions of the Constitution. It would not do, for
instance, to merely pass legislation vesting the BJE with treaty-
making power in order to accommodate paragraph 4 of the strand
on RESOURCES which states: The BJE is free to enter into any
economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do
not include aggression against the Government of the Republic of
the Philippines x x x. Under our constitutional system, it is only the
59

President who has that power. Pimentel v. Executive
Secretary
[155]
instructs:

In our system of government, the President, being the head
of state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with foreign
nations. As the chief architect of foreign policy, the President acts
as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign relations. In the
realm of treaty-making, the President has the sole authority to
negotiate with other states. (Emphasis and underscoring
supplied)


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

Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which
are R.A. No. 9054
[156]
or the Organic Act of the ARMM, and
the IPRA.
[157]



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

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

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

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

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

(b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social,
economic, cultural, and political institutions.


Respecting the IPRA, it lays down the prevailing procedure for
the delineation and recognition of ancestral domains. The MOA-
ADs manner of delineating the ancestral domain of the Bangsamoro
people is a clear departure from that procedure. By paragraph 1
ofTERRITORY, the Parties simply agree that, subject to the
delimitations in the agreed Schedules, [t]he Bangsamoro homeland
and historic territory refer to the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, and the aerial domain, the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region.

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

SECTION 52. Delineation Process. The identification and
delineation of ancestral domains shall be done in accordance with
the following procedures:

x x x x

b) Petition for Delineation. The process of delineating a
specific perimeter may be initiated by the NCIP with the consent of
the ICC/IP concerned, or through a Petition for Delineation filed with
the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. The official delineation of ancestral
domain boundaries including census of all community members
therein, shall be immediately undertaken by the Ancestral Domains
Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community
concerned and shall at all times include genuine involvement and
participation by the members of the communities concerned;

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

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

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

3) Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other
ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

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

9) Pictures and descriptive histories of traditional landmarks such
as mountains, rivers, creeks, ridges, hills, terraces and the like; and

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

e) Preparation of Maps. On the basis of such investigation
and the findings of fact based thereon, the Ancestral Domains Office
60

of the NCIP shall prepare a perimeter map, complete with technical
descriptions, and a description of the natural features and landmarks
embraced therein;

f) Report of Investigation and Other Documents. A complete
copy of the preliminary census and a report of investigation, shall be
prepared by the Ancestral Domains Office of the NCIP;

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

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

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

Article II, Section 2 of the Constitution states that the
Philippines adopts the generally accepted principles of
international law as part of the law of the land.


Applying this provision of the Constitution, the Court, in Mejoff v.
Director of Prisons,
[158]
held that the Universal Declaration of Human
Rights is part of the law of the land on account of which it ordered
the release on bail of a detained alien of Russian descent whose
deportation order had not been executed even after two
years. Similarly, the Court in Agustin v. Edu
[159]
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 QUEBEC
[160]
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 Rights
[161]
and the International Covenant on
Economic, Social and Cultural Rights
[162]
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 peoples right to self-determination should not, however,
be understood as extending to a unilateral right of secession. A
distinction should be made between the right of internal and external
self-determination. REFERENCE RE SECESSION OF QUEBEC is
again instructive:

(ii) Scope of the Right to Self-determination

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

External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the
free association or integration with an independent State or the
emergence into any other political status freely determined by
a people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)

127. The international law principle of self-determination
has evolved within a framework of respect for the territorial
integrity of existing states. The various international documents
that support the existence of a peoples right to self-determination
also contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats
to an existing states territorial integrity or the stability of relations
between sovereign states.

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


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

The exceptional nature of the right of secession is further
exemplified in the REPORT OF THE INTERNATIONAL
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
AALAND ISLANDS QUESTION.
[163]
There, Sweden presented to
the Council of the League of Nations the question of whether the
inhabitants of the Aaland Islands should be authorized to determine
by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The
Council, before resolving the question, appointed an International
61

Committee composed of three jurists to submit an opinion on the
preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of
Finland. The Committee stated the rule as follows:

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


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

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

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

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

Article 3

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

Article 4

Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions.

Article 5

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


Self-government, as used in international legal discourse
pertaining to indigenous peoples, has been understood as
equivalent to internal self-determination.
[166]
The extent of self-
determination provided for in the UN DRIP is more particularly
defined in its subsequent articles, some of which are quoted
hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention
of, and redress for:
(a) Any action which has the aim or effect of depriving them
of their integrity as distinct peoples, or of their cultural values
or ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim
or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 21

1. Indigenous peoples have the right, without discrimination, to
the improvement of their economic and social conditions, including,
inter alia, in the areas of education, employment, vocational training
and retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid to
the rights and special needs of indigenous elders, women, youth,
children and persons with disabilities.

Article 26

62

1. Indigenous peoples have the right to the lands, territories
and resources which they have traditionally owned, occupied
or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall be conducted
with due respect to the customs, traditions and land tenure systems
of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories
of indigenous peoples, unless justified by a relevant public interest
or otherwise freely agreed with or requested by the indigenous
peoples concerned.

2. States shall undertake effective consultations with the
indigenous peoples concerned, through appropriate procedures and
in particular through their representative institutions, prior to using
their lands or territories for military activities.

Article 32

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

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

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

Article 37

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

2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.

Article 38

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



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

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

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

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


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

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

7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes
to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact.

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

63

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:

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

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed
conflicts and social unrest. This may require administrative
action, new legislation or even constitutional amendments.

x x x x (Emphasis supplied)


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

The inquiry on the legality of the suspensive clause,
however, cannot stop here, because it must be asked

whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations,
agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only
to those solutions which the present laws allow? The answer to this
question requires a discussion of

the extent of the Presidents power to conduct peace
negotiations.


That the authority of the President to conduct peace
negotiations with rebel groups is not explicitly mentioned in the
Constitution does not mean that she has no such authority.
In Sanlakas v. Executive Secretary,
[168]
in issue was the authority of
the President to declare a state of rebellion an authority which is
not expressly provided for in the Constitution. The Court held thus:

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

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

Thus, the President's authority to declare a state of
rebellion springs in the main from her powers as chief
executive and, at the same time, draws strength from her
Commander-in-Chief powers. x x x (Emphasis and
underscoring supplied)
Similarly, the Presidents 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 nations
constitutional structure is required. The observations of Dr. Kirsti
Samuels are enlightening, to wit:

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

The design of a constitution and its constitution-making process can
play an important role in the political and governance
64

transition. Constitution-making after conflict is an opportunity to
create a common vision of the future of a state and a road map on
how to get there. The constitution can be partly a peace agreement
and partly a framework setting up the rules by which the new
democracy will operate.
[170]


In the same vein, Professor Christine Bell, in her article on the
nature and legal status of peace agreements, observed that the
typical way that peace agreements establish or confirm mechanisms
for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and
legal and human rights institutions.
[171]


In the Philippine experience, the link between peace agreements
and constitution-making has been recognized by no less than the
framers of the Constitution. Behind the provisions of the
Constitution on autonomous regions
[172]
is the framers intention to
implement a particular peace agreement, namely, the Tripoli
Agreement of 1976 between the GRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero and then
MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some
more questions, I will reserve my right to ask them if they are not
covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy
already exists in the Muslim region; it is working very well; it has,
in fact, diminished a great deal of the problems. So, my question
is: since that already exists, why do we have to go into
something new?

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


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

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

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

In Sanidad v. COMELEC,
[174]
in issue was the legality of then
President Marcos act of directly submitting proposals for
constitutional amendments to a referendum, bypassing the interim
National Assembly which was the body vested by the 1973
Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never convened
the interim National Assembly. The majority upheld the Presidents
act, holding that the urges of absolute necessity compelled the
President as the agent of the people to act as he did, there being no
interim National Assembly to propose constitutional
amendments. Against this ruling, Justices Teehankee and Muoz
Palma vigorously dissented. The Courts 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 Teehankees 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 Presidents action along
with the majority had the President convened the interim National
Assembly and coursed his proposals through it. Thus Justice
Teehankee opined:

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


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

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

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


The Lambino Group claims that their initiative is the people's voice.
However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms. The Lambino Group thus admits that their
people's initiative is an unqualified support to the agenda of the
65

incumbent President to change the Constitution. This forewarns the
Court to be wary of incantations of people's voice or sovereign will
in the present initiative.

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

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


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

Given the limited nature of the Presidents 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,


By the time these changes are put in place, the MOA-AD itself
would be counted among the prior agreements from which
there could be no derogation.
What remains for discussion in the Comprehensive Compact would
merely be the implementing details for these consensus points
and, notably, the deadline for effecting the contemplated changes to
the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent
with the limits of the Presidents 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: LOM
ACCORD AMNESTY
[180]
(the Lom Accord case) of the Special
Court of Sierra Leone is enlightening. The Lom Accord was a
peace agreement signed on July 7, 1999 between the Government
of Sierra Leone and the Revolutionary United Front (RUF), a rebel
group with which the Sierra Leone Government had been in armed
conflict for around eight years at the time of signing. There were
non-contracting signatories to the agreement, among which were
the Government of the Togolese Republic, the Economic
Community of West African States, and the UN.

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

Among the stipulations of the Lom Accord was a provision for the
full pardon of the members of the RUF with respect to anything done
by them in pursuit of their objectives as members of that
organization since the conflict began.
66


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

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

x x x x

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

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

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

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

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

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

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

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

44. Of course, not all unilateral acts imply obligation; but a
State may choose to take up a certain position in relation to a
particular matter with the intention of being boundthe
intention is to be ascertained by interpretation of the act. When
States make statements by which their freedom of action is to be
limited, a restrictive interpretation is called for.

x x x x

51. In announcing that the 1974 series of atmospheric tests
would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention effectively
to terminate these tests. It was bound to assume that other
States might take note of these statements and rely on their
being effective. The validity of these statements and their legal
consequences must be considered within the general
framework of the security of international intercourse, and the
confidence and trust which are so essential in the relations among
States. It is from the actual substance of these statements, and
67

from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects
of these statements are clear and they were addressed to the
international community as a whole, and the Court holds that
they constitute an undertaking possessing legal effect. The
Court considers *270 that the President of the Republic, in deciding
upon the effective cessation of atmospheric tests, gave an
undertaking to the international community to which his words were
addressed. x x x (Emphasis and underscoring supplied)


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

The limited applicability of the Nuclear Tests Case ruling was
recognized in a later case decided by the ICJ entitled Burkina Faso
v. Mali,
[183]
also known as the Case Concerning the Frontier
Dispute. The public declaration subject of that case was a
statement made by the President of Mali, in an interview by a foreign
press agency, that Mali would abide by the decision to be issued by
a commission of the Organization of African Unity on a frontier
dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of
Malis President was not a unilateral act with legal implications. It
clarified that its ruling in the Nuclear Tests case rested on the
peculiar circumstances surrounding the French declaration subject
thereof, to wit:

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


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

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

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

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

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


SUMMARY

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

As the petitions involve constitutional issues which are of
paramount public interest or of transcendental importance, the Court
grants the petitioners, petitioners-in-intervention and intervening
68

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 peoples 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 peoples 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.

69

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.

EN BANC
[G.R. No. 118295. May 2, 1997]
WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as
members of the Philippine Senate and as taxpayers;
GREGORIO ANDOLANA and JOKER ARROYO as members of
the House of Representatives and as taxpayers; NICANOR P.
PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL
LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM
ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT
INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION,
INC., PHILIPPINE RURAL RECONSTRUCTION MOVEMENT,
DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS,
INC., and PHILIPPINE PEASANT INSTITUTE, in representation
of various taxpayers and as non-governmental
organizations, petitioners, vs. EDGARDO ANGARA, ALBERTO
ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ,
AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES,
ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-
ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA,
SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their respective
capacities as members of the Philippine Senate who concurred
in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization;
SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget
and Management; CARIDAD VALDEHUESA, in her capacity as
National Treasurer; RIZALINO NAVARRO, in his capacity as
Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his
capacity as Secretary of Agriculture; ROBERTO DE OCAMPO,
in his capacity as Secretary of Finance; ROBERTO ROMULO, in
his capacity as Secretary of Foreign Affairs; and TEOFISTO T.
GUINGONA, in his capacity as Executive
Secretary, respondents.
D E C I S I O N
PANGANIBAN, J .:
The emergence on January 1, 1995 of the World Trade
Organization, abetted by the membership thereto of the vast
majority of countries has revolutionized international business and
economic relations amongst states. It has irreversibly propelled the
world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and
privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical
relics the heretofore traditional modes of promoting and protecting
national economies like tariffs, export subsidies, import quotas,
quantitative restrictions, tax exemptions and currency
controls. Finding market niches and becoming the best in specific
industries in a market-driven and export-oriented global scenario are
replacing age-old beggar-thy-neighbor policies that unilaterally
protect weak and inefficient domestic producers of goods and
services. In the words of Peter Drucker, the well-known
management guru, Increased participation in the world economy
has become the key to domestic economic growth and prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the
Second World War, plans for the establishment of three multilateral
institutions -- inspired by that grand political body, the United
Nations -- were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to address
the rehabilitation and reconstruction of war-ravaged and later
developing countries; the second, the International Monetary Fund
(IMF) which was to deal with currency problems; and the third, the
International Trade Organization (ITO), which was to foster order
and predictability in world trade and to minimize unilateral
protectionist policies that invite challenge, even retaliation, from
other states. However, for a variety of reasons, including its non-
ratification by the United States, the ITO, unlike the IMF and WB,
never took off. What remained was only GATT -- the General
Agreement on Tariffs and Trade. GATT was a collection of treaties
governing access to the economies of treaty adherents with no
institutionalized body administering the agreements or dependable
system of dispute settlement.
After half a century and several dizzying rounds of negotiations,
principally the Kennedy Round, the Tokyo Round and the Uruguay
Round, the world finally gave birth to that administering body -- the
World Trade Organization -- with the signing of the Final Act in
Marrakesh, Morocco and the ratification of the WTO Agreement by
its members.
[1]

Like many other developing countries, the Philippines joined WTO
as a founding member with the goal, as articulated by President
Fidel V. Ramos in two letters to the Senate (infra), of improving
Philippine access to foreign markets, especially its major trading
partners, through the reduction of tariffs on its exports, particularly
agricultural and industrial products. The President also saw in the
WTO the opening of new opportunities for the services sector x x x,
(the reduction of) costs and uncertainty associated with exporting x x
x, and (the attraction of) more investments into the
country. Although the Chief Executive did not expressly mention it
in his letter, the Philippines - - and this is of special interest to the
legal profession - - will benefit from the WTO system of dispute
settlement by judicial adjudication through the independent WTO
settlement bodies called (1) Dispute Settlement Panels and (2)
Appellate Tribunal. Heretofore, trade disputes were settled mainly
through negotiations where solutions were arrived at frequently on
the basis of relative bargaining strengths, and where naturally, weak
and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines to place
nationals and products of member-countries on the same footing as
Filipinos and local products and (2) that the WTO intrudes, limits
and/or impairs the constitutional powers of both Congress and the
Supreme Court, the instant petition before this Court assails the
WTO Agreement for violating the mandate of the 1987 Constitution
to develop a self-reliant and independent national economy
effectively controlled by Filipinos x x x (to) give preference to
qualified Filipinos (and to) promote the preferential use of Filipino
labor, domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine
participation in worldwide trade liberalization and economic
globalization? Does it prescribe Philippine integration into a global
economy that is liberalized, deregulated and privatized? These are
the main questions raised in this petition for certiorari, prohibition
and mandamus under Rule 65 of the Rules of Court praying (1) for
the nullification, on constitutional grounds, of the concurrence of the
Philippine Senate in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the
prohibition of its implementation and enforcement through the
release and utilization of public funds, the assignment of public
officials and employees, as well as the use of government properties
and resources by respondent-heads of various executive offices
concerned therewith. This concurrence is embodied in Senate
Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
the Department of Trade and Industry (Secretary Navarro, for
brevity), representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the Final Act Embodying
the Results of the Uruguay Round of Multilateral Negotiations (Final
Act, for brevity).
By signing the Final Act,
[2]
Secretary Navarro on behalf of the
Republic of the Philippines, agreed:
70

(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities, with a view
to seeking approval of the Agreement in accordance with their
procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received
a letter dated August 11, 1994 from the President of the
Philippines,
[3]
stating among others that the Uruguay Round Final
Act is hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received
another letter from the President of the Philippines
[4]
likewise dated
August 11, 1994, which stated among others that the Uruguay
Round Final Act, the Agreement Establishing the World Trade
Organization, the Ministerial Declarations and Decisions, and the
Understanding on Commitments in Financial Services are hereby
submitted to the Senate for its concurrence pursuant to Section 21,
Article VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution
entitled Concurring in the Ratification of the Agreement Establishing
the World Trade Organization.
[5]

On December 14, 1994, the Philippine Senate adopted Resolution
No. 97 which Resolved, as it is hereby resolved, that the Senate
concur, as it hereby concurs, in the ratification by the President of
the Philippines of the Agreement Establishing the World Trade
Organization.
[6]
The text of the WTO Agreement is written on pages
137 et seq. of Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various agreements
and associated legal instruments (identified in the said Agreement
as Annexes 1, 2 and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the General on Tariffs
and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the Settlement
of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed
[7]
the
Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS,
President of the Republic of the Philippines, after having seen and
considered the aforementioned Agreement Establishing the World
Trade Organization and the agreements and associated legal
instruments included in Annexes one (1), two (2) and three (3) of
that Agreement which are integral parts thereof, signed at
Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm
the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the
Philippines is composed of the Agreement Proper and the
associated legal instruments included in Annexes one (1), two (2)
and three (3) of that Agreement which are integral parts thereof.
On the other hand, the Final Act signed by Secretary Navarro
embodies not only the WTO Agreement (and its integral annexes
aforementioned) but also (1) the Ministerial Declarations and
Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996,
[8]
the Solicitor
General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five
declarations and decisions on a wide range of matters, such as
measures in favor of least developed countries, notification
procedures, relationship of WTO with the International Monetary
Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.
The Understanding on Commitments in Financial Services dwell on,
among other things, standstill or limitations and qualifications of
commitments to existing non-conforming measures, market access,
national treatment, and definitions of non-resident supplier of
financial services, commercial presence and new financial service.
On December 29, 1994, the present petition was filed. After careful
deliberation on respondents comment and petitioners reply thereto,
the Court resolved on December 12, 1995, to give due course to the
petition, and the parties thereafter filed their respective
memoranda. The Court also requested the Honorable Lilia R.
Bautista, the Philippine Ambassador to the United Nations stationed
in Geneva, Switzerland, to submit a paper, hereafter referred to as
Bautista Paper,
[9]
for brevity, (1) providing a historical background
of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court
directed:
(a) the petitioners to submit the (1) Senate Committee Report on
the matter in controversy and (2) the transcript of
proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list
of Philippine treaties signed prior to the Philippine adherence to the
WTO Agreement, which derogate from Philippine sovereignty and
(2) copies of the multi-volume WTO Agreement and other
documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would
consider the case submitted for resolution. In a Compliance dated
September 16, 1996, the Solicitor General submitted a printed copy
of the 36-volume Uruguay Round of Multilateral Trade Negotiations,
and in another Compliance dated October 24, 1996, he listed the
various bilateral or multilateral treaties or international instruments
involving derogation of Philippine sovereignty. Petitioners, on the
other hand, submitted their Compliance dated January 28, 1997, on
January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners
summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise
not justiciable.
B. Whether the petitioner members of the Senate who participated
in the deliberations and voting leading to the concurrence are
estopped from impugning the validity of the Agreement Establishing
the World Trade Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World
Trade Organization contravene the provisions of Sec. 19, Article II,
and Secs. 10 and 12, Article XII, all of the 1987 Philippine
Constitution.
D. Whether provisions of the Agreement Establishing the World
Trade Organization unduly limit, restrict and impair Philippine
sovereignty specifically the legislative power which, under Sec. 2,
Article VI, 1987 Philippine Constitution is vested in the Congress of
the Philippines;
E. Whether provisions of the Agreement Establishing the World
Trade Organization interfere with the exercise of judicial power.
71

F. Whether the respondent members of the Senate acted in grave
abuse of discretion amounting to lack or excess of jurisdiction when
they voted for concurrence in the ratification of the constitutionally-
infirm Agreement Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave
abuse of discretion amounting to lack or excess of jurisdiction when
they concurred only in the ratification of the Agreement Establishing
the World Trade Organization, and not with the Presidential
submission which included the Final Act, Ministerial Declaration and
Decisions, and the Understanding on Commitments in Financial
Services.
On the other hand, the Solicitor General as counsel for respondents
synthesized the several issues raised by petitioners into the
following:
[10]

1. Whether or not the provisions of the Agreement Establishing the
World Trade Organization and the Agreements and Associated
Legal Instruments included in Annexes one (1), two (2) and three (3)
of that agreement cited by petitioners directly contravene or
undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit,
restrict or impair the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the
exercise of judicial power by this Honorable Court in promulgating
the rules of evidence.
4. Whether or not the concurrence of the Senate in the ratification
by the President of the Philippines of the Agreement establishing the
World Trade Organization implied rejection of the treaty embodied
in the Final Act.
By raising and arguing only four issues against the seven presented
by petitioners, the Solicitor General has effectively ignored three,
namely: (1) whether the petition presents a political question or is
otherwise not justiciable; (2) whether petitioner-members of the
Senate (Wigberto E. Taada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-
members of the Senate acted in grave abuse of discretion when
they voted for concurrence in the ratification of the WTO
Agreement. The foregoing notwithstanding, this Court resolved to
deal with these three issues thus:
(1) The political question issue -- being very fundamental and vital,
and being a matter that probes into the very jurisdiction of this Court
to hear and decide this case -- was deliberated upon by the Court
and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense
is waivable and the respondents have effectively waived it by not
pursuing it in any of their pleadings; in any event, this issue, even if
ruled in respondents favor, will not cause the petitions dismissal as
there are petitioners other than the two senators, who are not
vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the
respondent senators will be taken up as an integral part of the
disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the
respondents did not question the locus standi of petitioners. Hence,
they are also deemed to have waived the benefit of such
issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international commitments
of the nation are involved here, and that transcendental public
interest requires that the substantive issues be met head on and
decided on the merits, rather than skirted or deflected by procedural
matters.
[11]

To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION
INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT
HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS
THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND
SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE
CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS
ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF
LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE
WITH THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN
PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID,
CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL
SERVICES?
The First Issue: Does the Court Have J urisdiction Over the
Controversy?
In seeking to nullify an act of the Philippine Senate on the ground
that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch 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. The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld.
[12]
Once a controversy as
to the application or interpretation of a constitutional provision is
raised before this Court (as in the instant case), it becomes a legal
issue which the Court is bound by constitutional mandate to
decide.
[13]

The jurisdiction of this Court to adjudicate the matters
[14]
raised in
the petition is clearly set out in the 1987 Constitution,
[15]
as follows:
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial departments duty and
power to strike down grave abuse of discretion on the part of any
branch or instrumentality of government including Congress. It is an
innovation in our political law.
[16]
As explained by former Chief
Justice Roberto Concepcion,
[17]
the judiciary is the final arbiter on
the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction or
so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many
cases,
[18]
it will not shirk, digress from or abandon its sacred duty
and authority to uphold the Constitution in matters that involve grave
abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of
the government.
As the petition alleges grave abuse of discretion and as there is no
other plain, speedy or adequate remedy in the ordinary course of
law, we have no hesitation at all in holding that this petition should
be given due course and the vital questions raised therein ruled
upon under Rule 65 of the Rules of Court. Indeed, certiorari,
prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when
proper, acts of legislative and executive officials. On this, we have
no equivocation.
We should stress that, in deciding to take jurisdiction over this
petition, this Court will not review the wisdom of the decision of the
President and the Senate in enlisting the country into the WTO, or
pass upon the merits of trade liberalization as a policy espoused by
said international body. Neither will it rule on the propriety of the
governments economic policy of reducing/removing tariffs, taxes,
subsidies, quantitative restrictions, and other import/trade
barriers. Rather, it will only exercise its constitutional duty to
determine whether or not there had been a grave abuse of
72

discretion amounting to lack or excess of jurisdiction on the part of
the Senate in ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the
Constitution mandating economic nationalism are violated by the
so-called parity provisions and national treatment clauses
scattered in various parts not only of the WTO Agreement and its
annexes but also in the Ministerial Decisions and Declarations and
in the Understanding on Commitments in Financial Services.
Specifically, the flagship constitutional provisions referred to are
Sec. 19, Article II, and Secs. 10 and 12, Article XII, of the
Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx
xx xx
Sec. 19. The State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos.
xx xx
xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx
xx xx
Sec. 10. x x x. The Congress shall enact measures that will
encourage the formation and operation of enterprises whose capital
is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference to
qualified Filipinos.
xx xx
xx xx
Sec. 12. The State shall promote the preferential use of Filipino
labor, domestic materials and locally produced goods, and adopt
measures that help make them competitive.
Petitioners aver that these sacred constitutional principles are
desecrated by the following WTO provisions quoted in their
memorandum:
[19]

a) In the area of investment measures related to trade in
goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT
1994. no Member shall apply any TRIM that is inconsistent with the
provisions of Article III or Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the
obligations of general elimination of quantitative restrictions provided
for in paragraph I of Article XI of GATT 1994 is contained in the
Annex to this Agreement. (Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round, Legal Instruments,
p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national
treatment provided for in paragraph 4 of Article III of GATT 1994
include those which are mandatory or enforceable under
domestic law or under administrative rulings, or compliance
with which is necessary to obtain an advantage, and which
require:
(a) the purchase or use by an enterprise of products of domestic
origin or from any domestic source, whether specified in terms of
particular products, in terms of volume or value of products, or in
terms of proportion of volume or value of its local production; or
(b) that an enterprises purchases or use of imported products be
limited to an amount related to the volume or value of local products
that it exports.
2. TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph 1 of
Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or
compliance with which is necessary to obtain an advantage, and
which restrict:
(a) the importation by an enterprise of products used in or related to
the local production that it exports;
(b) the importation by an enterprise of products used in or related to
its local production by restricting its access to foreign exchange
inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular
products, in terms of volume or value of products, or in terms of a
preparation of volume or value of its local production. (Annex to the
Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round Legal Documents, p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as
follows:
The products of the territory of any contracting party imported into
the territory of any other contracting party shall be accorded
treatment no less favorable than that accorded to like products
of national origin in respect of laws, regulations and requirements
affecting their internal sale, offering for sale, purchase,
transportation, distribution or use. the provisions of this paragraph
shall not prevent the application of differential internal transportation
charges which are based exclusively on the economic operation of
the means of transport and not on the nationality of the
product. (Article III, GATT 1947, as amended by the Protocol
Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62
UMTS 82-84 in relation to paragraph 1(a) of the General Agreement
on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal
Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of intellectual property
rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members
treatment no less favourable than that it accords to its own
nationals with regard to the protection of intellectual
property... (par. 1, Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal
Instruments, p.25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any
conditions and qualifications set out therein, each Member shall
accord to services and service suppliers of any other Member, in
respect of all measures affecting the supply of services, treatment
no less favourable than it accords to its own like services and
service suppliers.
2. A Member may meet the requirement of paragraph I by according
to services and service suppliers of any other Member, either
formally identical treatment or formally different treatment to that it
accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be
considered to be less favourable if it modifies the conditions of
completion in favour of services or service suppliers of the Member
compared to like services or service suppliers of any other
Member. (Article XVII, General Agreement on Trade in Services,
Vol. 28, Uruguay Round Legal Instruments, p.22610 emphasis
supplied).
It is petitioners position that the foregoing national treatment and
parity provisions of the WTO Agreement place nationals and
products of member countries on the same footing as Filipinos and
local products, in contravention of the Filipino First policy of the
Constitution. They allegedly render meaningless the phrase
effectively controlled by Filipinos. The constitutional conflict
becomes more manifest when viewed in the context of the clear duty
imposed on the Philippines as a WTO member to ensure the
conformity of its laws, regulations and administrative procedures
with its obligations as provided in the annexed
73

agreements.
[20]
Petitioners further argue that these provisions
contravene constitutional limitations on the role exports play in
national development and negate the preferential treatment
accorded to Filipino labor, domestic materials and locally produced
goods.
On the other hand, respondents through the Solicitor General
counter (1) that such Charter provisions are not self-executing and
merely set out general policies; (2) that these nationalistic portions
of the Constitution invoked by petitioners should not be read in
isolation but should be related to other relevant provisions of Art. XII,
particularly Secs. 1 and 13 thereof; (3) that read properly, the cited
WTO clauses do not conflict with the Constitution; and (4) that the
WTO Agreement contains sufficient provisions to protect developing
countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a declaration of
principles and state policies. The counterpart of this article in the
1935 Constitution
[21]
is called the basic political creed of the
nation by Dean Vicente Sinco.
[22]
These principles in Article II are
not intended to be self-executing principles ready for enforcement
through the courts.
[23]
They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato,
[24]
the principles and state
policies enumerated in Article II and some sections of Article XII are
not self-executing provisions, the disregard of which can give rise to
a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation.
In the same light, we held in Basco vs. Pagcor
[25]
that broad
constitutional principles need legislative enactments to implement
them, thus:
On petitioners allegation that P.D. 1869 violates Sections 11
(Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article II;
Section 13 (Social Justice) of Article XIII and Section 2 (Educational
Values) of Article XIV of the 1987 Constitution, suffice it to state also
that these are merely statements of principles and policies. As
such, they are basically not self-executing, meaning a law should be
passed by Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be
self-executing principles ready for enforcement through the
courts. They were rather directives addressed to the executive and
to the legislature. If the executive and the legislature failed to heed
the directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the
failure of the executive and the legislature through the language of
the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged
infringement of broad constitutional principles are sourced from
basic considerations of due process and the lack of judicial authority
to wade into the uncharted ocean of social and economic policy
making. Mr. Justice Florentino P. Feliciano in his concurring
opinion in Oposa vs. Factoran, Jr.,
[26]
explained these reasons as
follows:
My suggestion is simply that petitioners must, before the trial court,
show a more specific legal right -- a right cast in language of a
significantly lower order of generality than Article II (15) of the
Constitution -- that is or may be violated by the actions, or failures to
act, imputed to the public respondent by petitioners so that the trial
court can validly render judgment granting all or part of the relief
prayed for. To my mind, the court should be understood as simply
saying that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles found in
the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the
proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right,
rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been
violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to
this matter.
The second is a broader-gauge consideration -- where a specific
violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded conception
of judicial power in the second paragraph of Section 1 of Article VIII
of the Constitution which reads:
Section 1. x x x
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Government. (Emphases supplied)
When substantive standards as general as the right to a balanced
and healthy ecology and the right to health are combined with
remedial standards as broad ranging as a grave abuse of discretion
amounting to lack or excess of jurisdiction, the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of
social and economic policy making. At least in respect of the vast
area of environmental protection and management, our courts have
no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments --
the legislative and executive departments -- must be given a real
and effective opportunity to fashion and promulgate those norms
and standards, and to implement them before the courts should
intervene.
Economic Nationalism Should Be Read with Other
Constitutional Mandates to Attain Balanced Development of
Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely
laying down general principles relating to the national economy and
patrimony, should be read and understood in relation to the other
sections in said article, especially Secs. 1 and 13 thereof which
read:
Section 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained
increase in the amount of goods and services produced by the
nation for the benefit of the people; and an expanding productivity as
the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based
on sound agricultural development and agrarian reform, through
industries that make full and efficient use of human and natural
resources, and which are competitive in both domestic and foreign
markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to
develop. x x x
x x x x x
x x x x
Sec. 13. The State shall pursue a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange
on the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic
goals of national economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services
provided by the nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life
for all especially the underprivileged.
74

With these goals in context, the Constitution then ordains the ideals
of economic nationalism (1) by expressing preference in favor of
qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony
[27]
and in the use of
Filipino labor, domestic materials and locally-produced goods; (2)
by mandating the State to adopt measures that help make them
competitive;
[28]
and (3) by requiring the State to develop a self-
reliant and independent national economy effectively controlled by
Filipinos.
[29]
In similar language, the Constitution takes into account
the realities of the outside world as it requires the pursuit of a trade
policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and
reciprocity;
[30]
and speaks of industries which are competitive in
both domestic and foreign markets as well as of the protection of
Filipino enterprises against unfair foreign competition and trade
practices.
It is true that in the recent case of Manila Prince Hotel vs.
Government Service Insurance System, et al.,
[31]
this Court held that
Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which
needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require
any legislation to put it in operation. It is per se judicially
enforceable. However, as the constitutional provision itself states, it
is enforceable only in regard to the grants of rights, privileges and
concessions covering national economy and patrimony and not to
every aspect of trade and commerce. It refers to exceptions rather
than the rule. The issue here is not whether this paragraph of Sec.
10 of Art. XII is self-executing or not. Rather, the issue is whether,
as a rule, there are enough balancing provisions in the Constitution
to allow the Senate to ratify the Philippine concurrence in the WTO
Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the
world on the bases of equality and reciprocity and limits protection of
Filipino enterprises only against foreign competition and trade
practices that are unfair.
[32]
In other words, the Constitution did not
intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the
Philippine economy. While the Constitution does not encourage the
unlimited entry of foreign goods, services and investments into the
country, it does not prohibit them either. In fact, it allows an
exchange on the basis of equality and reciprocity, frowning only on
foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has
some built-in advantages to protect weak and developing
economies, which comprise the vast majority of its members. Unlike
in the UN where major states have permanent seats and veto
powers in the Security Council, in the WTO, decisions are made on
the basis of sovereign equality, with each members vote equal in
weight to that of any other. There is no WTO equivalent of the UN
Security Council.
WTO decides by consensus whenever possible, otherwise,
decisions of the Ministerial Conference and the General Council
shall be taken by the majority of the votes cast, except in cases of
interpretation of the Agreement or waiver of the obligation of a
member which would require three fourths vote. Amendments
would require two thirds vote in general. Amendments to MFN
provisions and the Amendments provision will require assent of all
members. Any member may withdraw from the Agreement upon the
expiration of six months from the date of notice of withdrawals.
[33]

Hence, poor countries can protect their common interests more
effectively through the WTO than through one-on-one negotiations
with developed countries. Within the WTO, developing countries
can form powerful blocs to push their economic agenda more
decisively than outside the Organization. This is not merely a matter
of practical alliances but a negotiating strategy rooted in law. Thus,
the basic principles underlying the WTO Agreement recognize the
need of developing countries like the Philippines to share in the
growth in international trade commensurate with the needs of their
economic development. These basic principles are found in the
preamble
[34]
of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic
endeavour should be conducted with a view to raising standards of
living, ensuring full employment and a large and steadily growing
volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with the
objective of sustainable development, seeking both to protect and
preserve the environment and to enhance the means for doing so in
a manner consistent with their respective needs and concerns at
different levels of economic development,
Recognizing further that there is need for positive efforts designed to
ensure that developing countries, and especially the least developed
among them, secure a share in the growth in international trade
commensurate with the needs of their economic development,
Being desirous of contributing to these objectives by entering into
reciprocal and mutually advantageous arrangements directed to the
substantial reduction of tariffs and other barriers to trade and to
the elimination of discriminatory treatment in international trade
relations,
Resolved, therefore, to develop an integrated, more viable and
durable multilateral trading system encompassing the General
Agreement on Tariffs and Trade, the results of past trade
liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the
objectives underlying this multilateral trading system, x x
x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and
consistent with the foregoing basic principles, the WTO Agreement
grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign
competition. Thus, with respect to tariffs in general, preferential
treatment is given to developing countries in terms of the amount of
tariff reduction and the period within which the reduction is to be
spread out. Specifically, GATT requires an average tariff reduction
rate of 36% for developed countries to be effected within a period of
six (6) years while developing countries -- including the Philippines --
are required to effect an average tariff reduction of only 24% within
ten (10) years.
In respect to domestic subsidy, GATT requires developed
countries to reduce domestic support to agricultural products
by 20% over six (6) years, as compared to only 13% for developing
countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires
developed countries to reduce their budgetary outlays for export
subsidy by 36% and export volumes receiving export subsidy
by 21% within a period of six (6) years. For developing countries,
however, the reduction rate is only two-thirds of that prescribed for
developed countries and a longer period of ten (10) years within
which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair
foreign competition and trade practices including anti-dumping
measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these measures. There is
hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that
Filipinos will be deprived of control of the economy. Quite the
contrary, the weaker situations of developing nations like the
Philippines have been taken into account; thus, there would be no
basis to say that in joining the WTO, the respondents have gravely
abused their discretion. True, they have made a bold decision to
75

steer the ship of state into the yet uncharted sea of economic
liberalization. But such decision cannot be set aside on the ground
of grave abuse of discretion, simply because we disagree with it or
simply because we believe only in other economic policies. As
earlier stated, the Court in taking jurisdiction of this case will not
pass upon the advantages and disadvantages of trade liberalization
as an economic policy. It will only perform its constitutional duty of
determining whether the Senate committed grave abuse of
discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant and
independent national economy
[35]
does not necessarily rule out the
entry of foreign investments, goods and services. It contemplates
neither economic seclusion nor mendicancy in the international
community. As explained by Constitutional Commissioner
Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing
country that is keenly aware of overdependence on external
assistance for even its most basic needs. It does not mean autarky
or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from
undue foreign control of the national economy, especially in such
strategic industries as in the development of natural resources and
public utilities.
[36]

The WTO reliance on most favored nation, national treatment,
and trade without discrimination cannot be struck down as
unconstitutional as in fact they are rules of equality and reciprocity
that apply to all WTO members. Aside from envisioning a trade
policy based on equality and reciprocity,
[37]
the fundamental law
encourages industries that are competitive in both domestic and
foreign markets, thereby demonstrating a clear policy against a
sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the
best in the foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the
Filipino capacity to grow and to prosper against the best offered
under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor
of any business or enterprise, nor does it contain any specific
pronouncement that Filipino companies should be pampered with a
total
proscription of foreign competition. On the other hand, respond
ents claim that WTO/GATT aims to make available to the Filipino
consumer the best goods and services obtainable anywhere in the
world at the most reasonable prices. Consequently, the question
boils down to whether WTO/GATT will favor the general welfare of
the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the
general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare
because it will -- as promised by its promoters -- expand the
countrys exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and
quality products at the most reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our
policy makers, for which they are answerable to our people during
appropriate electoral exercises. Such questions and the answers
thereto are not subject to judicial pronouncements based on grave
abuse of discretion.
Constitution Designed to Meet Future Events and
Contingencies
No doubt, the WTO Agreement was not yet in existence when the
Constitution was drafted and ratified in 1987. That does not mean
however that the Charter is necessarily flawed in the sense that its
framers might not have anticipated the advent of a borderless world
of business. By the same token, the United Nations was not yet in
existence when the 1935 Constitution became effective. Did that
necessarily mean that the then Constitution might not have
contemplated a diminution of the absoluteness of sovereignty when
the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the
decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed
to meet not only the vagaries of contemporary events. They should
be interpreted to cover even future and unknown circumstances. It
is to the credit of its drafters that a Constitution can withstand the
assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As
one eminent political law writer and respected jurist
[38]
explains:
The Constitution must be quintessential rather than superficial, the
root and not the blossom, the base and framework only of the edifice
that is yet to rise. It is but the core of the dream that must take
shape, not in a twinkling by mandate of our delegates, but slowly in
the crucible of Filipino minds and hearts, where it will in time
develop its sinews and gradually gather its strength and finally
achieve its substance. In fine, the Constitution cannot, like the
goddess Athena, rise full-grown from the brow of the Constitutional
Convention, nor can it conjure by mere fiat an instant Utopia. It
must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history
the dynamism and vitality that will keep it, far from becoming a
petrified rule, a pulsing, living law attuned to the heartbeat of the
nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall ensure the
conformity of its laws, regulations and administrative procedures
with its obligations as provided in the annexed
Agreements.
[39]
Petitioners maintain that this undertaking unduly
limits, restricts and impairs Philippine sovereignty, specifically the
legislative power which under Sec. 2, Article VI of the 1987
Philippine Constitution is vested in the Congress of the
Philippines. It is an assault on the sovereign powers of the
Philippines because this means that Congress could not pass
legislation that will be good for our national interest and general
welfare if such legislation will not conform with the WTO Agreement,
which not only relates to the trade in goods x x x but also to the flow
of investments and money x x x as well as to a whole slew of
agreements on socio-cultural matters x x x.
[40]

More specifically, petitioners claim that said WTO proviso derogates
from the power to tax, which is lodged in the Congress.
[41]
And while
the Constitution allows Congress to authorize the President to fix
tariff rates, import and export quotas, tonnage and wharfage dues,
and other duties or imposts, such authority is subject to specified
limits and x x x such limitations and restrictions as Congress may
provide,
[42]
as in fact it did under Sec. 401 of the Tariff and Customs
Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion by which
petitioners stressed their arguments on this issue. However, while
sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of
nations. Unquestionably, the Constitution did not envision a hermit-
type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution 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."
[43]
By the doctrine
of incorporation, the country is bound by generally accepted
principles of international law, which are considered to be
automatically part of our own laws.
[44]
One of the oldest and most
fundamental rules in international law is pacta sunt servanda --
international agreements must be performed in good faith. A treaty
engagement is not a mere moral obligation but creates a legally
76

binding obligation on the parties x x x. A state which has contracted
valid international obligations is bound to make in its legislations
such modifications as may be necessary to ensure the fulfillment of
the obligations undertaken.
[45]

By their inherent nature, treaties really limit or restrict the
absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all,
states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to
limit the exercise of their otherwise absolute rights. Thus, treaties
have been used to record agreements between States concerning
such widely diverse matters as, for example, the lease of naval
bases, the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of alliances, the
regulation of commercial relations, the settling of claims, the laying
down of rules governing conduct in peace and the establishment of
international organizations.
[46]
The sovereignty of a state therefore
cannot in fact and in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations imposed by the very
nature of membership in the family of nations and (2) limitations
imposed by treaty stipulations. As aptly put by John F. Kennedy,
Today, no nation can build its destiny alone. The age of self-
sufficient nationalism is over. The age of interdependence is
here.
[47]

UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its
51 charter members, it consented to restrict its sovereign rights
under the concept of sovereignty as auto-limitation.
47-A
Under
Article 2 of the UN Charter, (a)ll members shall give the United
Nations every assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving assistance to any
state against which the United Nations is taking preventive or
enforcement action. Such assistance includes payment of its
corresponding share not merely in administrative expenses but also
in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the
International Court of Justice held that money used by the United
Nations Emergency Force in the Middle East and in the Congo were
expenses of the United Nations under Article 17, paragraph 2, of
the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping
expenses or not. So too, under Article 105 of the said Charter, the
UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of
members within their own territory. Another example: although
sovereign equality and domestic jurisdiction of all members are
set forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement measures
decided by the Security Council for the maintenance of international
peace and security under Chapter VII of the Charter. A final
example: under Article 103, (i)n the event of a conflict between the
obligations of the Members of the United Nations under the present
Charter and their obligations under any other international
agreement, their obligation under the present charter shall prevail,
thus unquestionably denying the Philippines -- as a member -- the
sovereign power to make a choice as to which of conflicting
obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many
other international pacts -- both bilateral and multilateral -- that
involve limitations on Philippine sovereignty. These are enumerated
by the Solicitor General in his Compliance dated October 24, 1996,
as follows:
(a) Bilateral convention with the United States regarding taxes on
income, where the Philippines agreed, among others, to exempt
from tax, income received in the Philippines by, among others, the
Federal Reserve Bank of the United States, the Export/Import Bank
of the United States, the Overseas Private Investment Corporation
of the United States. Likewise, in said convention, wages, salaries
and similar remunerations paid by the United States to its citizens
for labor and personal services performed by them as employees or
officials of the United States are exempt from income tax by the
Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for
the avoidance of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the
avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance
of double taxation.
(e) Bilateral air transport agreement with Korea where the
Philippines agreed to exempt from all customs duties, inspection
fees and other duties or taxes aircrafts of South Korea and the
regular equipment, spare parts and supplies arriving with said
aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines
agreed to exempt from customs duties, excise taxes, inspection fees
and other similar duties, taxes or charges fuel, lubricating oils, spare
parts, regular equipment, stores on board Japanese aircrafts while
on Philippine soil.
(g) Bilateral air service agreement with Belgium where the
Philippines granted Belgian air carriers the same privileges as those
granted to Japanese and Korean air carriers under separate air
service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor
visas where the Philippines exempted Israeli nationals from the
requirement of obtaining transit or visitor visas for a sojourn in the
Philippines not exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals
from the requirement of obtaining transit and visitor visa for a
sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the
Philippines agreed that premises of Special Missions in the
Philippines are inviolable and its agents can not enter said premises
without consent of the Head of Mission concerned. Special
Missions are also exempted from customs duties, taxes and related
charges.
(k) Multilateral Convention on the Law of Treaties. In this
convention, the Philippines agreed to be governed by the Vienna
Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting
compulsory jurisdiction of the International Court of Justice. The
International Court of Justice has jurisdiction in all legal disputes
concerning the interpretation of a treaty, any question of
international law, the existence of any fact which, if established,
would constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively agreed to
limit the exercise of its sovereign powers of taxation, eminent
domain and police power. The underlying consideration in this
partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same
reciprocity characterizes the Philippine commitments under WTO-
GATT.
International treaties, whether relating to nuclear disarmament,
human rights, the environment, the law of the sea, or trade,
constrain domestic political sovereignty through the assumption of
external obligations. But unless anarchy in international relations is
preferred as an alternative, in most cases we accept that the
benefits of the reciprocal obligations involved outweigh the costs
associated with any loss of political sovereignty. (T)rade treaties
that structure relations by reference to durable, well-defined
substantive norms and objective dispute resolution procedures
reduce the risks of larger countries exploiting raw economic power
to bully smaller countries, by subjecting power relations to some
form of legal ordering. In addition, smaller countries typically stand
to gain disproportionately from trade liberalization. This is due to the
77

simple fact that liberalization will provide access to a larger set of
potential new trading relationship than in case of the larger country
gaining enhanced success to the smaller countrys market.
[48]

The point is that, as shown by the foregoing treaties, a portion of
sovereignty may be waived without violating the Constitution, based
on the rationale that the Philippines adopts the generally accepted
principles of international law as part of the law of the land and
adheres to the policy of x x x cooperation and amity with all nations.
Fourth Issue: The WTO Agreement and J udicial Power
Petitioners aver that paragraph 1, Article 34 of the General
Provisions and Basic Principles of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS)
[49]
intrudes on the
power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures.
[50]

To understand the scope and meaning of Article 34, TRIPS,
[51]
it will
be fruitful to restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the
infringement of the rights of the owner referred to in paragraph 1(b)
of Article 28, if the subject matter of a patent is a process for
obtaining a product, the judicial authorities shall have the authority to
order the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that any
identical product when produced without the consent of the patent
owner shall, in the absence of proof to the contrary, be deemed to
have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was
made by the process and the owner of the patent has been unable
through reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof
indicated in paragraph 1 shall be on the alleged infringer only if the
condition referred to in subparagraph (a) is fulfilled or only if the
condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of
defendants in protecting their manufacturing and business secrets
shall be taken into account.
From the above, a WTO Member is required to provide a rule of
disputable (note the words in the absence of proof to the contrary)
presumption that a product shown to be identical to one produced
with the use of a patented process shall be deemed to have been
obtained by the (illegal) use of the said patented process, (1) where
such product obtained by the patented product is new, or (2) where
there is substantial likelihood that the identical product was made
with the use of the said patented process but the owner of the patent
could not determine the exact process used in obtaining such
identical product. Hence, the burden of proof contemplated by
Article 34 should actually be understood as the duty of the alleged
patent infringer to overthrow such presumption. Such burden,
properly understood, actually refers to the burden of
evidence (burden of going forward) placed on the producer of the
identical (or fake) product to show that his product was produced
without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the
burden of proof since, regardless of the presumption provided
under paragraph 1 of Article 34, such owner still has to introduce
evidence of the existence of the alleged identical product, the fact
that it is identical to the genuine one produced by the patented
process and the fact of newness of the genuine product or the fact
of substantial likelihood that the identical product was made by the
patented process.
The foregoing should really present no problem in changing the
rules of evidence as the present law on the subject, Republic Act
No. 165, as amended, otherwise known as the Patent Law, provides
a similar presumption in cases of infringement of patented design or
utility model, thus:
SEC. 60. Infringement. - Infringement of a design patent or of a
patent for utility model shall consist in unauthorized copying of the
patented design or utility model for the purpose of trade or industry
in the article or product and in the making, using or selling of the
article or product copying the patented design or utility
model. Identity or substantial identity with the patented design or
utility model shall constitute evidence of copying. (underscoring
supplied)
Moreover, it should be noted that the requirement of Article 34 to
provide a disputable presumption applies only if (1) the product
obtained by the patented process is NEW or (2) there is a
substantial likelihood that the identical product was made by the
process and the process owner has not been able through
reasonable effort to determine the process used. Where either of
these two provisos does not obtain, members shall be free to
determine the appropriate method of implementing the provisions of
TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our
disposition of the third issue -- derogation of legislative power - will
apply to this fourth issue also. Suffice it to say that the reciprocity
clause more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an unreasonable
burden, consistent as it is with due process and the concept of
adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the adjustment
in legislation and rules of procedure will not be substantial.
[52]

Fifth Issue: Concurrence Only in the WTO Agreement and Not
in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO
Agreement and its annexes -- but not in the other documents
referred to in the Final Act, namely the Ministerial Declaration and
Decisions and the Understanding on Commitments in Financial
Services -- is defective and insufficient and thus constitutes abuse of
discretion. They submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a rejection of the
Final Act, which in turn was the document signed by Secretary
Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to
the Senate
[53]
which enumerated what constitutes the Final Act
should have been the subject of concurrence of the Senate.
A final act, sometimes called protocol de clture, is an instrument
which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the texts of
treaties, conventions, recommendations and other acts agreed upon
and signed by the plenipotentiaries attending the conference.
[54]
It is
not the treaty itself. It is rather a summary of the proceedings of a
protracted conference which may have taken place over several
years. The text of the Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations is contained in
just one page
[55]
in Vol. I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations. By signing said Final Act, Secretary
Navarro as representative of the Republic of the Philippines
undertook:
"(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities with a view to
seeking approval of the Agreement in accordance with their
procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in
exactly what the Final Act required from its signatories, namely,
concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted
without need for ratification. They were approved by the ministers
by virtue of Article XXV: 1 of GATT which provides that
representatives of the members can meet to give effect to those
provisions of this Agreement which invoke joint action, and generally
with a view to facilitating the operation and furthering the objectives
of this Agreement.
[56]

78

The Understanding on Commitments in Financial Services also
approved in Marrakesh does not apply to the Philippines. It applies
only to those 27 Members which have indicated in their respective
schedules of commitments on standstill, elimination of monopoly,
expansion of operation of existing financial service suppliers,
temporary entry of personnel, free transfer and processing of
information, and national treatment with respect to access to
payment, clearing systems and refinancing available in the normal
course of business.
[57]

On the other hand, the WTO Agreement itself expresses what
multilateral agreements are deemed included as its integral
parts,
[58]
as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework for
the conduct of trade relations among its Members in matters to the
agreements and associated legal instruments included in the
Annexes to this Agreement.
2. The Agreements and associated legal instruments included in
Annexes 1, 2, and 3 (hereinafter referred to as Multilateral
Agreements) are integral parts of this Agreement, binding on all
Members.
3. The Agreements and associated legal instruments included in
Annex 4 (hereinafter referred to as Plurilateral Trade Agreements)
are also part of this Agreement for those Members that have
accepted them, and are binding on those Members. The Plurilateral
Trade Agreements do not create either obligation or rights for
Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in
annex 1A (hereinafter referred to as GATT 1994) is legally distinct
from the General Agreement on Tariffs and Trade, dated 30 October
1947, annexed to the Final Act adopted at the conclusion of the
Second Session of the Preparatory Committee of the United Nations
Conference on Trade and Employment, as subsequently rectified,
amended or modified (hereinafter referred to as GATT 1947).
It should be added that the Senate was well-aware of what it was
concurring in as shown by the members deliberation on August 25,
1994. After reading the letter of President Ramos dated August 11,
1994,
[59]
the senators of the Republic minutely dissected what the
Senate was concurring in, as follows:
[60]

THE CHAIRMAN: Yes. Now, the question of the validity of the
submission came up in the first day hearing of this Committee
yesterday. Was the observation made by Senator Taada that what
was submitted to the Senate was not the agreement on establishing
the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World
Trade Organization? And on that basis, Senator Tolentino raised a
point of order which, however, he agreed to withdraw upon
understanding that his suggestion for an alternative solution at that
time was acceptable. That suggestion was to treat the proceedings
of the Committee as being in the nature of briefings for Senators
until the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a
new... is he making a new submission which improves on the clarity
of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and
there should be no misunderstanding, it was his intention to clarify
all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator
Tolentino since they were the ones that raised this question
yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly
appear that what is being submitted to the Senate for ratification is
not the Final Act of the Uruguay Round, but rather the Agreement on
the World Trade Organization as well as the Ministerial Declarations
and Decisions, and the Understanding and Commitments in
Financial Services.
I am now satisfied with the wording of the new submission of
President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from
Senator Tolentino? And after him Senator Neptali Gonzales and
Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new
submission actually transmitted to us but I saw the draft of his
earlier, and I think it now complies with the provisions of the
Constitution, and with the Final Act itself. The Constitution does not
require us to ratify the Final Act. It requires us to ratify the
Agreement which is now being submitted. The Final Act itself
specifies what is going to be submitted to with the governments of
the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to
submit as appropriate the WTO Agreement for the consideration of
the respective competent authorities with a view to seeking approval
of the Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be
submitted to the governments for ratification or acceptance as
whatever their constitutional procedures may provide but it is the
World Trade Organization Agreement. And if that is the one that is
being submitted now, I think it satisfies both the Constitution and the
Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on
Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are
already a matter of record. And they had been adequately reflected
in the journal of yesterdays session and I dont see any need for
repeating the same.
Now, I would consider the new submission as an act ex abudante
cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do
you want to make any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made
by Senator Gonzales out of the abundance of question. Then the
new submission is, I believe, stating the obvious and therefore I
have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO
Agreement, petitioners are invoking this Courts constitutionally
imposed duty to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on
the part of the Senate in giving its concurrence therein via Senate
Resolution No. 97. Procedurally, a writ of certiorari grounded on
grave abuse of discretion may be issued by the Court under Rule 65
of the Rules of Court when it is amply shown that petitioners have
no other plain, speedy and adequate remedy in the ordinary course
of law.
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction.
[61]
Mere abuse of discretion is not enough. It must
be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.
[62]
Failure on the part
of the petitioner to show grave abuse of discretion will result in the
dismissal of the petition.
[63]

In rendering this Decision, this Court never forgets that the Senate,
whose act is under review, is one of two sovereign houses of
Congress and is thus entitled to great respect in its actions. It is
itself a constitutional body independent and coordinate, and thus its
actions are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are presented to
79

overthrow such presumptions, this Court will resolve every doubt in
its favor. Using the foregoing well-accepted definition of grave
abuse of discretion and the presumption of regularity in the Senates
processes, this Court cannot find any cogent reason to impute grave
abuse of discretion to the Senates exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of Article
VII of the Constitution.
[64]

It is true, as alleged by petitioners, that broad constitutional
principles require the State to develop an independent national
economy effectively controlled by Filipinos; and to protect and/or
prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles -- while
serving as judicial and legislative guides -- are not in themselves
sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity and the promotion of industries
which are competitive in both domestic and foreign markets,
thereby justifying its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the exercise of legislative and judicial
powers is balanced by the adoption of the generally accepted
principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity
with all nations.
That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby
making it a part of the law of the land is a legitimate exercise of its
sovereign duty and power. We find no patent and gross
arbitrariness or despotism by reason of passion or personal
hostility in such exercise. It is not impossible to surmise that this
Court, or at least some of its members, may even agree with
petitioners that it is more advantageous to the national interest to
strike down Senate Resolution No. 97. But that is not a legal
reason to attribute grave abuse of discretion to the Senate and to
nullify its decision. To do so would constitute grave abuse in the
exercise of our own judicial power and duty. Ineludably, what the
Senate did was a valid exercise of its authority. As to whether such
exercise was wise, beneficial or viable is outside the realm of judicial
inquiry and review. That is a matter between the elected policy
makers and the people. As to whether the nation should join the
worldwide march toward trade liberalization and economic
globalization is a matter that our people should determine in electing
their policy makers. After all, the WTO Agreement allows withdrawal
of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best
seller Megatrends, predicts an Asian Renaissance
[65]
where the
East will become the dominant region of the world economically,
politically and culturally in the next century. He refers to the free
market espoused by WTO as the catalyst in this coming Asian
ascendancy. There are at present about 31 countries including
China, Russia and Saudi Arabia negotiating for membership in the
WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure
for multilateral trading and the veritable forum for the development of
international trade law. The alternative to WTO is isolation,
stagnation, if not economic self-destruction. Duly enriched with
original membership, keenly aware of the advantages and
disadvantages of globalization with its on-line experience, and
endowed with a vision of the future, the Philippines now straddles
the crossroads of an international strategy for economic prosperity
and stability in the new millennium. Let the people, through their
duly authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.