Merlin Magallona vs Secretary

Eduardo Ermita
May 10, 2014
655 SCRA 476 – Political Law – National Territory – RA 9522 is Constitutional
In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the
Philippines was enacted – the law is also known as the Baselines Law. This law was meant
to comply with the terms of the third United Nations Convention on the Law of the Sea
(UNCLOS III), ratified by the Philippines in February 1984.
Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend,
among others, that the law decreased the national territory of the Philippines hence the law
is unconstitutional. Some of their particular arguments are as follows:
a. the law abandoned the demarcation set by the Treaty of Paris and other ancillary treaties
– this also resulted to the exclusion of our claim over Sabah;
b. the law, as well as UNCLOS itself, describes the Philippine waters as “archipelagic”
waters which, in international law, opens our waters landward of the baselines to maritime
passage by all vessels (innocent passage) and aircrafts (overflight), undermining Philippine
sovereignty and national security, contravening the country’s nuclear-free policy, and
damaging marine resources, in violation of relevant constitutional provisions;
c. the classification of the Kalayaan Island Group (KIG), as well as the Scarborough Shoal
(bajo de masinloc), as a “regime of islands” pursuant to UNCLOS results in the loss of a
large maritime area but also prejudices the livelihood of subsistence fishermen.
ISSUE: Whether or not the contentions of Magallona et al are tenable.
HELD: No. The Supreme Court emphasized that RA 9522, or UNCLOS, itself is not a
means to acquire, or lose, territory. The treaty and the baseline law has nothing to do with
the acquisition, enlargement, or diminution of the Philippine territory. What controls when it
comes to acquisition or loss of territory is the international law principle on occupation,
accretion, cession and prescription and NOT the execution of multilateral treaties on the
regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit
maritime zones and continental shelves.
The law did not decrease the demarcation of our territory. In fact it increased it. Under the
old law amended by RA 9522 (RA 3046), we adhered with the rectangular lines enclosing
the Philippines. The area that it covered was 440,994 square nautical miles (sq. na. mi.).
But under 9522, and with the inclusion of the exclusive economic zone, the extent of our
maritime was increased to 586,210 sq. na. mi. (See image below for comparison)
If any, the baselines law is a notice to the international community of the scope of the
maritime space and submarine areas within which States parties exercise treaty-based
rights.
Anent their particular contentions:
a. The law did not abandon the Sabah claim. This is evident on the provision of Section 2 of
RA 9522:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago
as provided in this Act is without prejudice to the delineation of the baselines of the
territorial sea around the territory of Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion and sovereignty.
b. UNCLOS may term our waters as “archipelagic waters” and that we may term it as our
“internal waters”, but the bottom line is that our country exercises sovereignty over these
waters and UNCLOS itself recognizes that. However, due to our observance of international
law, we allow the exercise of others of their right of innocent passage. No modern State can
validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in
accordance with customary international law without risking retaliatory measures from the
international community.
c. The classification of the KIG (or the Spratly’s), as well as the Scarborough Shoal, as a
regime of islands did not diminish our maritime area. Under UNCLOS and under the
baselines law, since they are regimes of islands, they generate their own maritime zones –
in short, they are not to be enclosed within the baselines of the main archipelago (which is
the Philippine Island group). This is because if we do that, then we will be enclosing a larger
area which would already depart from the provisions of UNCLOS – that the demarcation
should follow the natural contour of the archipelago.
Nevertheless, we still continue to lay claim over the KIG and the Scarborough Shoal
through effective occupation.
NOTES:
Under UNCLOS and the baselines law, we have three levels of maritime zones where we
exercise treaty-based rights:
a. territorial waters – 12 nautical miles from the baselines; where we exercise sovereignty
b. contiguous zone – 24 nautical miles from the baselines; jurisdiction where we can
enforce customs, fiscal, immigration, and sanitation laws (CFIS).
c. exclusive economic zone – 200 nautical miles from the baselines; where we have the
right to exploit the living and non-living resources in the exclusive economic zone
Note: a fourth zone may be added which is the continental shelf – this is covered by Article
77 of the UNCLOS.
Full text

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS,
PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE
OF LAW STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA
MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA,
JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA
BUENAVENTURA, EDAN MARRI CAÑETE, VANN ALLEN DELA CRUZ, RENE
DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III,
GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE
CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA
MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN
HANNA PINEDA, WILLIAM RAGAMAT,MARICAR RAMOS, ENRIK FORT REVILLAS,
JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO,
DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE
MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA,
and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON.
ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY
OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN
HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE
INFORMATION AUTHORITY, and HON. HILARIODAVIDE, JR., IN HIS CAPACITY
AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE REPUBLIC OF THE
PHILIPPINES TO THE UNITED NATIONS, Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of
Republic Act No. 95221 (RA 9522) adjusting the country’s archipelagic baselines and
classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime
baselines of the Philippines as an archipelagic State.3 This law followed the framing of the
Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I), 4 codifying,
among others, the sovereign right of States parties over their “territorial sea,” the breadth of
which, however, was left undetermined. Attempts to fill this void during the second round of
negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046
remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic
Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of
baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under
scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms
of the United Nations Convention on the Law of the Sea (UNCLOS III), 5 which the
Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-
land ratio, length, and contour of baselines of archipelagic States like the Philippines 7 and
sets the deadline for the filing of application for the extended continental shelf.8 Complying
with these requirements, RA 9522 shortened one baseline, optimized the location of some
basepoints around the Philippine archipelago and classified adjacent territories, namely, the
Kalayaan Island Group (KIG) and the Scarborough Shoal, as “regimes of islands” whose
islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as
“citizens, taxpayers or x x x legislators,”9 as the case may be, assail the constitutionality of
RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime
territory, and logically, the reach of the Philippine state’s sovereign power, in violation of
Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and
ancillary treaties,12 and (2) RA 9522 opens the country’s waters landward of the baselines to
maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and
national security, contravening the country’s nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522’s treatment of the KIG as “regime of islands”
not only results in the loss of a large maritime area but also prejudices the livelihood of
subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners
facially attack RA 9522 for what it excluded and included – its failure to reference either the
Treaty of Paris or Sabah and its use of UNCLOS III’s framework of regime of islands to
determine the maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the
petition’s compliance with the case or controversy requirement for judicial review grounded
on petitioners’ alleged lack of locus standi and (2) the propriety of the writs of certiorari and
prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended
RA 9522 as the country’s compliance with the terms of UNCLOS III, preserving Philippine
territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not
undermine the country’s security, environment and economic interests or relinquish the
Philippines’ claim over Sabah.
Respondents also question the normative force, under international law, of petitioners’
assertion that what Spain ceded to the United States under the Treaty of Paris were the
islands and all the waters found within the boundaries of the rectangular area drawn under
the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily –
a) Whether petitioners possess locus standi to bring this suit; and
b) Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit
as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the
constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522
unconstitutional.
On the Threshold Issues Petitioners Possess Locus Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and
taxpayers because the petition alleges neither infringement of legislative prerogative 15 nor
misuse of public funds,16 occasioned by the passage and implementation of RA 9522.
Nonetheless, we recognize petitioners’ locus standi as citizens with constitutionally
sufficient interest in the resolution of the merits of the case which undoubtedly raises issues
of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature
of RA 9522, it is understandably difficult to find other litigants possessing “a more direct and
specific interest” to bring the suit, thus satisfying one of the requirements for granting
citizenship standing.17
The Writs of Certiorari and Prohibition Are Proper Remedies to Test the
Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and prohibition, noting that the writs
cannot issue absent any showing of grave abuse of discretion in the exercise of judicial,
quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the
part of petitioners.18
Respondents’ submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition, viewed
the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality
of statutes,19 and indeed, of acts of other branches of government.20 Issues of constitutional
import are sometimes crafted out of statutes which, while having no bearing on the personal
interests of the petitioners, carry such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the case and pass upon the issues
raised, non-compliance with the letter of procedural rules notwithstanding. The statute
sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool to Demarcate the Country’s Maritime Zones and
Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory
Petitioners submit that RA 9522 “dismembers a large portion of the national
territory”21 because it discards the pre-UNCLOS III demarcation of Philippine territory under
the Treaty of Paris and related treaties, successively encoded in the definition of national
territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this
constitutional definition trumps any treaty or statutory provision denying the Philippines
sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty
of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the
Treaty of Paris’ technical description, Philippine sovereignty over territorial waters extends
hundreds of nautical miles around the Philippine archipelago, embracing the rectangular
area delineated in the Treaty of Paris.22
Petitioners’ theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral
treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial
waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the
baselines], exclusive economic zone [200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-
long negotiations among United Nations members to codify norms regulating the conduct of
States in the world’s oceans and submarine areas, recognizing coastal and archipelagic
States’ graduated authority over a limited span of waters and submarine lands along their
coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States
parties to mark-out specific basepoints along their coasts from which baselines are drawn,
either straight or contoured, to serve as geographic starting points to measure the breadth
of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States
like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf. – The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf shall be
measured from archipelagic baselines drawn in accordance with Article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties
to delimit with precision the extent of their maritime zones and continental shelves. In turn,
this gives notice to the rest of the international community of the scope of the maritime
space and submarine areas within which States parties exercise treaty-based rights,
namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to
enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33),
and the right to exploit the living and non-living resources in the exclusive economic zone
(Article 56) and continental shelf (Article 77).
Even under petitioners’ theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the
Philippines would still have to be drawn in accordance with RA 9522 because this is the
only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be
drawn from the boundaries or other portions of the rectangular area delineated in the Treaty
of Paris, but from the “outermost islands and drying reefs of the archipelago.”24
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or,
as petitioners claim, diminution of territory. Under traditional international law typology,
States acquire (or conversely, lose) territory through occupation, accretion, cession and
prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or
enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental
shelves. Territorial claims to land features are outside UNCLOS III, and are instead
governed by the rules on general international law.26
RA 9522’s Use of the Framework of Regime of Islands to Determine the Maritime
Zones of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines’
Claim of Sovereignty Over these Areas
Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to
draw the baselines, and to measure the breadth of the applicable maritime zones of the
KIG, “weakens our territorial claim” over that area.27 Petitioners add that the KIG’s (and
Scarborough Shoal’s) exclusion from the Philippine archipelagic baselines results in the
loss of “about 15,000 square nautical miles of territorial waters,” prejudicing the livelihood of
subsistence fishermen.28 A comparison of the configuration of the baselines drawn under
RA 3046 and RA 9522 and the extent of maritime space encompassed by each law,
coupled with a reading of the text of RA 9522 and its congressional deliberations, vis-à-
vis the Philippines’ obligations under UNCLOS III, belie this view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522
merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that
RA 9522 skipped to optimize the location of basepoints and adjust the length of one
baseline (and thus comply with UNCLOS III’s limitation on the maximum length of
baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie
outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a
statutory renunciation of the Philippines’ claim over the KIG, assuming that baselines are
relevant for this purpose.
Petitioners’ assertion of loss of “about 15,000 square nautical miles of territorial waters”
under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by
optimizing the location of basepoints, increased the Philippines’ total maritime space
(covering its internal waters, territorial sea and exclusive economic zone) by 145,216
square nautical miles, as shown in the table below:29

Extent of maritime
area using RA Extent of maritime
3046, as amended, area using RA
taking into account 9522, taking into
the Treaty of Paris’ account UNCLOS
delimitation (in III (in square
square nautical nautical miles)
miles)

Internal or
166,858 171,435
archipelagic waters

Territorial Sea 274,136 32,106

 Exclusive Economic
Zone

382,669TOTAL440,994586,210
Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA
9522 even extends way beyond the waters covered by the rectangular demarcation under
the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of
opposite or adjacent States, there will have to be a delineation of maritime boundaries in
accordance with UNCLOS III.30

Further, petitioners’ argument that the KIG now lies outside Philippine territory because the
baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section
2 of the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction
over the KIG and the Scarborough Shoal:
 SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as “Regime of Islands” under
the Republic of the Philippines consistent with Article 121 of the United Nations Convention
on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the
Philippine archipelago, adverse legal effects would have ensued. The Philippines would
have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS
III requires that “[t]he drawing of such baselines shall not depart to any appreciable extent
from the general configuration of the archipelago.” Second, Article 47 (2) of UNCLOS III
requires that “the length of the baselines shall not exceed 100 nautical miles,” save for three
per cent (3%) of the total number of baselines which can reach up to 125 nautical miles. 31
Although the Philippines has consistently claimed sovereignty over the KIG32 and the
Scarborough Shoal for several decades, these outlying areas are located at an appreciable
distance from the nearest shoreline of the Philippine archipelago,33 such that any straight
baseline loped around them from the nearest basepoint will inevitably “depart to an
appreciable extent from the general configuration of the archipelago.”
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took
pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and
the Scarborough Shoal are outside our archipelagic baseline because if we put them inside
our baselines we might be accused of violating the provision of international law which
states: “The drawing of such baseline shall not depart to any appreciable extent from the
general configuration of the archipelago.” So sa loob ng ating baseline, dapat magkalapit
ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila
sa atin although we are still allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago is
defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo
ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba,
that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis
pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles,
hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the
rulethat it should follow the natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits. The
need to shorten this baseline, and in addition, to optimize the location of basepoints using
current maps, became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw the
outer limits of its maritime zones including the extended continental shelf in the manner
provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446,
the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under
Article 47(2) of the [UNCLOS III], which states that “The length of such baselines shall not
exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines
enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical
miles.”
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or
deleted from the baselines system. This will enclose an additional 2,195 nautical miles of
water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west
coasts of Luzon down to Palawan were later found to be located either inland or on water,
not on low-water line and drying reefs as prescribed by Article 47.35
Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough
Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as “‘Regime[s] of
Islands’ under the Republic of the Philippines consistent with Article 121”36 of UNCLOS III
manifests the Philippine State’s responsible observance of its pacta sunt
servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any “naturally
formed area of land, surrounded by water, which is above water at high tide,” such as
portions of the KIG, qualifies under the category of “regime of islands,” whose islands
generate their own applicable maritime zones.37
Statutory Claim Over Sabah under RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’
claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522
did not repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago
as provided in this Act is without prejudice to the delineation of the baselines of the
territorial sea around the territory of Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion and sovereignty. (Emphasis
supplied)
UNCLOS III and RA 9522 not Incompatible with the Constitution’s Delineation of
Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally “converts” internal waters into archipelagic waters, hence subjecting these
waters to the right of innocent and sea lanes passage under UNCLOS III, including
overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine
internal waters to nuclear and maritime pollution hazards, in violation of the Constitution. 38
Whether referred to as Philippine “internal waters” under Article I of the Constitution39 or as
“archipelagic waters” under UNCLOS III (Article 49 [1]), the Philippines exercises
sovereignty over the body of water lying landward of the baselines, including the air space
over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and
of their bed and subsoil. –
1. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as
to their bed and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air
space, bed and subsoil, and the resources contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to necessary, if
not marginal, burdens in the interest of maintaining unimpeded, expeditious international
navigation, consistent with the international law principle of freedom of navigation. Thus,
domestically, the political branches of the Philippine government, in the competent
discharge of their constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress. 41
In the absence of municipal legislation, international law norms, now codified in UNCLOS
III, operate to grant innocent passage rights over the territorial sea or archipelagic waters,
subject to the treaty’s limitations and conditions for their exercise.42 Significantly, the right of
innocent passage is a customary international law,43 thus automatically incorporated in the
corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely
forbid innocent passage that is exercised in accordance with customary international law
without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage45 does not place them in lesser footing vis-à-
vis continental coastal States which are subject, in their territorial sea, to the right of
innocent passage and the right of transit passage through international straits. The
imposition of these passage rights through archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange for their right to claim all the waters
landward of their baselines, regardless of their depth or distance from the coast, as
archipelagic waters subject to their territorial sovereignty. More importantly, the recognition
of archipelagic States’ archipelago and the waters enclosed by their baselines as one
cohesive entity prevents the treatment of their islands as separate islands under UNCLOS
III.46 Separate islands generate their own maritime zones, placing the waters between
islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty,
subjecting these waters to the rights of other States under UNCLOS III.47
Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of
Principles and State Policies)48 must also fail. Our present state of jurisprudence considers
the provisions in Article II as mere legislative guides, which, absent enabling legislation, “do
not embody judicially enforceable constitutional rights x x x.”49 Article II provisions serve as
guides in formulating and interpreting implementing legislation, as well as in interpreting
executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a
healthful and balanced ecology under Section 16 of Article II as an exception, the present
petition lacks factual basis to substantiate the claimed constitutional violation. The other
provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2,
paragraph 251) and subsistence fishermen (Article XIII, Section 752), are not violated by RA
9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive
economic zone, reserving solely to the Philippines the exploitation of all living and non-living
resources within such zone. Such a maritime delineation binds the international community
since the delineation is in strict observance of UNCLOS III. If the maritime delineation is
contrary to UNCLOS III, the international community will of course reject it and will refuse to
be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates
a sui generis maritime space – the exclusive economic zone – in waters previously part of
the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the
resources found within this zone up to 200 nautical miles.53 UNCLOS III, however,
preserves the traditional freedom of navigation of other States that attached to this zone
beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines’ Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was
not bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and
we find petitioners’ reading plausible. Nevertheless, the prerogative of choosing this option
belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes
at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State
like the Philippines will find itself devoid of internationally acceptable baselines from where
the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-
fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and
exploit the resources in the waters and submarine areas around our archipelago;
and second, it weakens the country’s case in any international dispute over Philippine
maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation
of the breadth of the Philippines’ maritime zones and continental shelf. RA 9522 is therefore
a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent
with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
Corona, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad,
Villarama, Jr., Portugal Perez (on leave), Mendoza, Sereno, JJ., concur.
READ CASE DIGEST HERE.
Footnotes
1Entitled “An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by
Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for
Other Purposes.”
2 Entitled “An Act to Define the Baselines of the Territorial Sea of the Philippines.”
3 The third “Whereas Clause” of RA 3046 expresses the import of treating the Philippines
as an archipelagic State:
“WHEREAS, all the waters around, between, and connecting the various islands of the
Philippine archipelago, irrespective of their width or dimensions, have always been
considered as necessary appurtenances of the land territory, forming part of the inland
waters of the Philippines.”
4 One of the four conventions framed during the first United Nations Convention on the Law
of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10
September 1964.
5 UNCLOS III entered into force on 16 November 1994.
6 The Philippines signed the treaty on 10 December 1982.
7 Article 47, paragraphs 1-3, provide:
1. An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within such
baselines are included the main islands and an area in which the ratio of the area of the
water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per
cent of the total number of baselines enclosing any archipelago may exceed that length, up
to a maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from the
general configuration of the archipelago. (Emphasis supplied)
xxxx
8 UNCLOS III entered into force on 16 November 1994. The deadline for the filing of
application is mandated in Article 4, Annex II: “Where a coastal State intends to establish, in
accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles,
it shall submit particulars of such limits to the Commission along with supporting scientific
and technical data as soon as possible but in any case within 10 years of the entry into
force of this Convention for that State. The coastal State shall at the same time give the
names of any Commission members who have provided it with scientific and technical
advice.” (Underscoring supplied)
In a subsequent meeting, the States parties agreed that for States which became bound by
the treaty before 13 May 1999 (such as the Philippines) the ten-year period will be counted
from that date. Thus, RA 9522, which took effect on 27 March 2009, barely met the
deadline.
9 Rollo, p. 34.
10Which provides: “The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including
its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas.
The waters around, between, and connecting the islands of the archipelago, regardless of
their breadth and dimensions, form part of the internal waters of the Philippines.”
11 Entered into between the Unites States and Spain on 10 December 1898 following the
conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the
United States “the archipelago known as the Philippine Islands” lying within its technical
description.
12 The Treaty of Washington, between Spain and the United States (7 November 1900),
transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain
Convention (2 January 1930) demarcating boundary lines between the Philippines and
North Borneo.
13 Article II, Section 7, Section 8, and Section 16.
14 Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of
the Constitution.
15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).
16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165
Phil. 303 (1976).
17 Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan,
Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995)
(Feliciano, J., concurring). The two other factors are: “the character of funds or assets
involved in the controversy and a clear disregard of constitutional or statutory prohibition.”
Id.
18 Rollo, pp. 144-147.
19 See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623
(dismissing a petition for certiorari and prohibition assailing the constitutionality of Republic
Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC,
G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare
unconstitutional Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003)
(issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic
Act No. 9189).
20See e.g. Neri v. Senate Committee on Accountability of Public Officers and
Investigations, G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari
against the Philippine Senate and nullifying the Senate contempt order issued against
petitioner).
21 Rollo, p. 31.
22 Respondents state in their Comment that petitioners’ theory “has not been accepted or
recognized by either the United States or Spain,” the parties to the Treaty of Paris.
Respondents add that “no State is known to have supported this proposition.” Rollo, p. 179.
23 UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner
Magallona himself defined as “a body of treaty rules and customary norms governing the
uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. x x x x” (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997])
(Italicization supplied).
24 Following Article 47 (1) of UNCLOS III which provides:
An archipelagic State may draw straight archipelagic baselines joining the outermost points
of the outermost islands and drying reefs of the archipelago provided that within such
baselines are included the main islands and an area in which the ratio of the area of the
water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis
supplied)
25 Under the United Nations Charter, use of force is no longer a valid means of acquiring
territory.
26 The last paragraph of the preamble of UNCLOS III states that “matters not regulated by
this Convention continue to be governed by the rules and principles of general international
law.”
27 Rollo, p. 51.
28 Id. at 51-52, 64-66.
29 Based on figures respondents submitted in their Comment (id. at 182).
30 Under Article 74.
31 See note 7.
32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.
33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around
123 nautical west of Zambales.
34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).
35 Rollo, p. 159.
36 Section 2, RA 9522.
37 Article 121 provides: “Regime of islands. —
1. An island is a naturally formed area of land, surrounded by water, which is above water at
high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.”
38 Rollo, pp. 56-57, 60-64.
39 Paragraph 2, Section 2, Article XII of the Constitution uses the term “archipelagic waters”
separately from “territorial sea.” Under UNCLOS III, an archipelagic State may have internal
waters – such as those enclosed by closing lines across bays and mouths of rivers. See
Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: “Where the
establishment of a straight baseline in accordance with the method set forth in article 7 has
the effect of enclosing as internal waters areas which had not previously been considered
as such, a right of innocent passage as provided in this Convention shall exist in those
waters.” (Emphasis supplied)
40 Mandated under Articles 52 and 53 of UNCLOS III:
Article 52. Right of innocent passage. —
1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the
right of innocent passage through archipelagic waters, in accordance with Part II,
section 3.
2. The archipelagic State may, without discrimination in form or in fact among foreign ships,
suspend temporarily in specified areas of its archipelagic waters the innocent passage of
foreign ships if such suspension is essential for the protection of its security. Such
suspension shall take effect only after having been duly published. (Emphasis supplied)
Article 53. Right of archipelagic sea lanes passage. —
1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the
continuous and expeditious passage of foreign ships and aircraft through or over its
archipelagic waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea
lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this Convention
of the rights of navigation and overflight in the normal mode solely for the purpose of
continuous, expeditious and unobstructed transit between one part of the high seas or an
exclusive economic zone and another part of the high seas or an exclusive economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent
territorial sea and shall include all normal passage routes used as routes for international
navigation or overflight through or over archipelagic waters and, within such routes, so far
as ships are concerned, all normal navigational channels, provided that duplication of routes
of similar convenience between the same entry and exit points shall not be necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from
the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea
lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines
during passage, provided that such ships and aircraft shall not navigate closer to the coasts
than 10 per cent of the distance between the nearest points on islands bordering the sea
lane.
6. An archipelagic State which designates sea lanes under this article may also prescribe
traffic separation schemes for the safe passage of ships through narrow channels in such
sea lanes.
7. An archipelagic State may, when circumstances require, after giving due publicity thereto,
substitute other sea lanes or traffic separation schemes for any sea lanes or traffic
separation schemes previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to generally accepted
international regulations.
9. In designating or substituting sea lanes or prescribing or substituting traffic separation
schemes, an archipelagic State shall refer proposals to the competent international
organization with a view to their adoption. The organization may adopt only such sea lanes
and traffic separation schemes as may be agreed with the archipelagic State, after which
the archipelagic State may designate, prescribe or substitute them.
10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic
separation schemes designated or prescribed by it on charts to which due publicity shall be
given.
11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic
separation schemes established in accordance with this article.
12. If an archipelagic State does not designate sea lanes or air routes, the right of
archipelagic sea lanes passage may be exercised through the routes normally used for
international navigation. (Emphasis supplied)
41 Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled “AN ACT TO
ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC
WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND
AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE
THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR
THE ASSOCIATED PROTECTIVE MEASURES THEREIN.”
42 The relevant provision of UNCLOS III provides:
Article 17. Right of innocent passage. —
Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy
the right of innocent passage through the territorial sea. (Emphasis supplied)
Article 19. Meaning of innocent passage. —
1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of
the coastal State. Such passage shall take place in conformity with this Convention and with
other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order
or security of the coastal State if in the territorial sea it engages in any of the following
activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political
independence of the coastal State, or in any other manner in violation of the principles of
international law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the
coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs,
fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of willful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or
installations of the coastal State;
(l) any other activity not having a direct bearing on passage
Article 21. Laws and regulations of the coastal State relating to innocent passage. —
1. The coastal State may adopt laws and regulations, in conformity with the provisions of
this Convention and other rules of international law, relating to innocent passage through
the territorial sea, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the prevention, reduction
and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction, manning or
equipment of foreign ships unless they are giving effect to generally accepted international
rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territorial sea shall
comply with all such laws and regulations and all generally accepted international
regulations relating to the prevention of collisions at sea.
43 The right of innocent passage through the territorial sea applies only to ships and not to
aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through the
sovereign territory of a State arises only under an international agreement. In contrast, the
right of innocent passage through archipelagic waters applies to both ships and aircrafts
(Article 53 (12), UNCLOS III).
44 Following Section 2, Article II of the Constitution: “Section 2. The Philippines renounces
war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.” (Emphasis supplied)
45“Archipelagic sea lanes passage is essentially the same as transit passage through
straits” to which the territorial sea of continental coastal State is subject. R.R. Churabill and
A.V. Lowe, The Law of the Sea 127 (1999).
46 Falling under Article 121 of UNCLOS III (see note 37).
47 Within the exclusive economic zone, other States enjoy the following rights under
UNCLOS III:
Article 58. Rights and duties of other States in the exclusive economic zone. —
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject
to the relevant provisions of this Convention, the freedoms referred to in article 87 of
navigation and overflight and of the laying of submarine cables and pipelines, and other
internationally lawful uses of the sea related to these freedoms, such as those associated
with the operation of ships, aircraft and submarine cables and pipelines, and compatible
with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive
economic zone in so far as they are not incompatible with this Part.
xxxx
Beyond the exclusive economic zone, other States enjoy the freedom of the high seas,
defined under UNCLOS III as follows:
Article 87. Freedom of the high seas. —
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the
high seas is exercised under the conditions laid down by this Convention and by other rules
of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international
law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other
States in their exercise of the freedom of the high seas, and also with due regard for the
rights under this Convention with respect to activities in the Area.
48 See note 13.
49 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Tañada v. Angara, 338 Phil. 546,
580-581 (1997).
50 G.R. No. 101083, 30 July 1993, 224 SCRA 792.
51 “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial
sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.”
52“The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources, both
inland and offshore. It shall provide support to such fishermen through appropriate
technology and research, adequate financial, production, and marketing assistance, and
other services. The State shall also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of subsistence fishermen against foreign
intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine
and fishing resources.”
53 This can extend up to 350 nautical miles if the coastal State proves its right to claim an
extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation
to Article 77).
54 Rollo, pp. 67-69.
55 Article 47 (1) provides: “An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in which the
ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9
to 1.” (Emphasis supplied)

G.R. No. 180110, May 30, 2016 - CAPITOL WIRELESS, INC., Petitioner, v. THE PROVINCIAL
TREASURER OF BATANGAS, THE PROVINCIAL ASSESSOR OF BATANGAS, THE
MUNICIPAL TREASURER AND ASSESSOR OF NASUGBU, BATANGAS, Respondents.

SECOND DIVISION

G.R. No. 180110, May 30, 2016

CAPITOL WIRELESS, INC., Petitioner, v. THE PROVINCIAL TREASURER OF BATANGAS,

THE PROVINCIAL ASSESSOR OF BATANGAS, THE MUNICIPAL TREASURER AND
ASSESSOR OF NASUGBU, BATANGAS, Respondents.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking to annul and set aside the Court of Appeals' Decision1 dated May 30, 2007 and
Resolution2 dated October 8, 2007 in CA-G.R. SP No. 82264, which both denied the appeal of
petitioner against the decision of the Regional Trial Court.

Below are the facts of the case.

Petitioner Capitol Wireless Inc. (Capwire) is a Philippine corporation in the business of providing
international telecommunications services.3 As such provider, Capwire has signed agreements
with other local and foreign telecommunications companies covering an international network of
submarine cable systems such as the Asia Pacific Cable Network System (APCN) (which
connects Australia, Thailand, Malaysia, Singapore, Hong Kong, Taiwan, Korea, Japan,
Indonesia and the Philippines); the Brunei-Malaysia-Philippines Cable Network System (BMP-
CNS), the Philippines-Italy (SEA-ME-WE-3 CNS), and the Guam Philippines (GP-CNS)
systems.4 The agreements provide for co-ownership and other rights among the parties over the
network.5
Petitioner Capwire claims that it is co-owner only of the so-called "Wet Segment" of the APCN,
while the landing stations or terminals and Segment E of APCN located in Nasugbu, Batangas
are allegedly owned by the Philippine Long Distance Telephone Corporation
(PLDT).6 Moreover, it alleges that the Wet Segment is laid in international, and not Philippine,
waters.7

Capwire claims that as co-owner, it does not own any particular physical part of the cable
system but, consistent with its financial contributions, it owns the right to use a certain capacity
of the said system.8This property right is allegedly reported in its financial books as
"Indefeasible Rights in Cable Systems."9

However, for loan restructuring purposes, Capwire claims that "it was required to register the
value of its right," hence, it engaged an appraiser to "assess the market value of the
international submarine cable system and the cost to Capwire."10 On May 15, 2000, Capwire
submitted a Sworn Statement of True Value of Real Properties at the Provincial Treasurer's
Office, Batangas City, Batangas Province, for the Wet Segment of the system, stating:

System Sound Value

APCN P 203,300,000.00

BMP-CNS P 65,662,000.00

SEA-ME-WE-3 CNS P P 7,540,000.00

GP-CNS P1,789,000.00

Capwire claims that it also reported that the system "interconnects at the PLDT Landing Station
in Nasugbu, Batangas," which is covered by a transfer certificate of title and tax declarations in
the name of PLDT.11

As a result, the respondent Provincial Assessor of Batangas (Provincial Assessor) issued the
following Assessments of Real Property (ARP) against Capwire:

ARP Cable System Assessed Value

019-00967 BMP-CNS P 52,529,600.00

019-00968 APCN P 162,640,000.00

019-00969 SEA-ME-WE3-CNS P 6,032,000.00

019-00970 GP-CNS P 1,431,200.00

In essence, the Provincial Assessor had determined that the submarine cable systems
described in Capwire's Sworn Statement of True Value of Real Properties are taxable real
property, a determination that was contested by Capwire in an exchange of letters between the
company and the public respondent.12 The reason cited by Capwire is that the cable system lies
outside of Philippine territory, i.e., on international waters.13

On February 7, 2003 and March 4, 2003, Capwire received a Warrant of Levy and a Notice of
Auction Sale, respectively, from the respondent Provincial Treasurer of Batangas (Provincial
Treasurer).14

On March 10, 2003, Capwire filed a Petition for Prohibition and Declaration of Nullity of Warrant
of Levy, Notice of Auction Sale and/or Auction Sale with the Regional Trial Court (RTC) of
Batangas City.15

Alter the filing of the public respondents' Comment,16 on May 5, 2003, the RTC issued an Order
dismissing the petition for failure of the petitioner Capwire to follow the requisite of payment
under protest as well as failure to appeal to the Local Board of Assessment Appeals (LBAA), as
provided for in Sections 206 and 226 of Republic Act (R.A.) No. 7160, or the Local Government
Code.17

Capwire filed a Motion for Reconsideration, but the same was likewise dismissed by the RTC in
an Order19dated August 26, 2003. It then filed an appeal to the Court of Appeals.20

On May 30, 2007, the Court of Appeals promulgated its Decision dismissing the appeal filed by
Capwire and affirming the order of the trial court. The dispositive portion of the CA's decision
states:

WHEREFORE, premises considered, the assailed Orders dated May 5, 2003 and August 26,
2003 of the Regional Trial Court, Branch 11 of Batangas City, are AFFIRMED.

SO ORDERED.21

The appellate court held that the trial court correctly dismissed Capwire's petition because of the
latter's failure to comply with the requirements set in Sections 226 and 229 of the Local
Government Code, that is, by not availing of remedies before administrative bodies like the
LBAA and the Central Board of Assessment Appeals (CBAA).22 Although Capwire claims that it
saw no need to undergo administrative proceedings because its petition raises purely legal
questions, the appellate court did not share this view and noted that the case raises questions
of fact, such as the extent to which parts of the submarine cable system lie within the territorial
jurisdiction of the taxing authorities, the public respondents.23 Further, the CA noted that
Capwire failed to pay the tax assessed against it under protest, another strict requirement under
Section 252 of the Local Government Code.24

Hence, the instant petition for review of Capwire.

Petitioner Capwire asserts that recourse to the Local Board of Assessment Appeals, or payment
of the tax under protest, is inapplicable to the case at bar since there is no question of fact
involved, or that the question involved is not the reasonableness of the amount assessed but,
rather, the authority and power of the assessor to impose the tax and of the treasurer to collect
it.25 It contends that there is only a pure question of law since the issue is whether its submarine
cable system, which it claims lies in international waters, is taxable.26 Capwire holds the position
that the cable system is not subject to tax.27cralawred

Respondents assessors and treasurers of the Province of Batangas ana Municipality of

Nasugbu, Batangas disagree with Capwire and insist that the case presents questions of fact
such as the extent and portion of the submarine cable system that lies within the jurisdiction of
the said local governments, as well as the nature of the so-called indefeasible rights as property
of Capwire.28 Such questions are allegedly resolvable only before administrative agencies like
the Local Board of Assessment Appeals.29

The Court confronts the following issues: Is the case cognizable by the administrative agencies
and covered by the requirements in Sections 226 and 229 of the Local Government Code which
makes the dismissal of Capwire's petition by the RTC proper? May submarine communications
cables be classified as taxable real property by the local governments?

The petition is denied. No error attended the ruling of the appellate court that the case involves
factual questions that should have been resolved before the appropriate administrative bodies.

In disputes involving real property taxation, the general rule is to require the taxpayer to first
avail of administrative remedies and pay the tax under protest before allowing any resort to a
judicial action, except when the assessment itself is alleged to be illegal or is made without legal
authority.30 For example, prior resort to administrative action is required when among the issues
raised is an allegedly erroneous assessment, like when the reasonableness of the amount is
challenged, while direct court action is permitted when only the legality, power, validity or
authority of the assessment itself is in question.31 Stated differently, the general rule of a
prerequisite recourse to administrative remedies applies when questions of fact are raised, but
the exception of direct court action is allowed when purely questions of law are involved.32

This Court has previously and rather succinctly discussed the difference between a question of
fact and a question of law. In Cosmos Bottling Corporation v. Nagrama, Jr.,33 it held:

The Court has made numerous dichotomies between questions of law and fact. A reading of
these dichotomies shows that labels attached to law and fact are descriptive rather than
definitive. We are not alone in Our difficult task of clearly distinguishing questions of feet from
questions of law. The United States Supreme Court has ruled that: "we [do not| yet know of any
other rule or principle that will unerringly distinguish a tactual finding from a legal conclusion."

In Ramos v. Pepsi-Cola Bottling Co. of the P.I., the Court ruled:

There is a question of law in a given case when the doubt or difference arises as to what the law
is on a certain state of facts; there is a question of fact when the doubt or difference arises as to
the truth or the falsehood of alleged facts.

We shall label this the doubt dichotomy.

In Republic v. Sandiganbayan, the Court ruled:

x x x A question of law exists when the doubt or controversy concerns the correct application of
law or jurisprudence to a certain set of facts; or when the issue docs not call for an examination
of the probative value of the evidence presented, the truth or falsehood of facts being admitted.
In contrast, a question of fact exists when the doubt or difference arises as to the truth or
falsehood of facts or when the query invites calibration of the whole evidence considering
mainly the credibility of the witnesses, the existence and relevancy of specific surrounding
circumstances as well as their relation to each other and to the whole, and the probability of the
situation.

For the sake of brevity, We shall label this the law application and calibration dichotomy.

In contrast, the dynamic legal scholarship in the United States has birthed many commentaries
on the question of law and question of fact dichotomy. As early as 1944, the law was described
as growing downward toward "roots of fact" which grew upward to meet it. In 1950, the late
Professor Louis Jaffe saw fact and law as a spectrum, with one shade blending imperceptibly
into the other. Others have defined questions of law as those that deal with the general body of
legal principles; questions of fact deal with "all other phenomena x x x." Kenneth Gulp Davis
also weighed in and noted that the difference between fact and law has been characterized as
that between "ought" questions and "is" questions.34

Guided by the quoted pronouncement, the Court sustains the CA's finding that petitioner's case
is one replete with questions of fact instead of pure questions of law, which renders its filing in a
judicial forum improper because it is instead cognizable by local administrative bodies like the
Board of Assessment Appeals, which are the proper venues for trying these factual issues.
Verily, what is alleged by Capwire in its petition as "the crux of the controversy," that is,
"whether or not an indefeasible right over a submarine cable system that lies in international
waters can be subject to real property tax in the Philippines,"35 is not the genuine issue that the
case presents - as it is already obvious and fundamental that real property that lies outside of
Philippine territorial jurisdiction cannot be subjected to its domestic and sovereign power of real
property taxation - but, rather, such factual issues as the extent and status of Capwire's
ownership of the system, the actual length of the cable/s that lie in Philippine territory, and the
corresponding assessment and taxes due on the same, because the public respondents
imposed and collected the assailed real property tax on the finding that at least a portion or
some portions of the submarine cable system that Capwire owns or co-owns lies inside
Philippine territory. Capwire's disagreement with such findings of the administrative bodies
presents little to no legal question that only the courts may directly resolve.

Instead, Capwire argues and makes claims on mere assumptions of certain facts as if they have
been already admitted or established, when they have not, since no evidence of such have yet
been presented in the proper agencies and even in the current petition. As such, it remains
unsettled whether Capwire is a mere co-owner, not full owner, of the subject submarine cable
and, if the former, as to what extent; whether all or certain portions of the cable are indeed
submerged in water; and whether the waters wherein the cable/s is/are laid are entirely outside
of Philippine territorial or inland waters, i.e., in international waters. More simply, Capwire
argues based on mere legal conclusions, culminating on its claim of illegality of respondents'
acts, but the conclusions are yet unsupported by facts that should have been threshed out
quasi-judicially before the administrative agencies. It has been held that "a bare characterization
in a petition of unlawfulness, is merely a legal conclusion and a wish of the pleader, and such a
legal conclusion unsubstantiated by facts which could give it life, has no standing in any court
where issues must be presented and determined by facts in ordinary and concise
language."36 Therefore, Capwire's resort to judicial action, premised on its legal conclusion that
its cables (the equipment being taxed) lie entirely on international waters, without first
administratively substantiating such a factual premise, is improper and was rightly denied. Its
proposition that the cables lie entirely beyond Philippine territory, and therefore, outside of
Philippine sovereignty, is a fact that is not subject to judicial notice since, on the contrary, and
as will be explained later, it is in fact certain that portions of the cable would definitely lie within
Philippine waters. Jurisprudence on the Local Government Code is clear that facts such as
these must be threshed out administratively, as the courts in these types of cases step in at the
first instance only when pure questions of law are involved.

Nonetheless, We proceed to decide on whether submarine wires or cables used for

communications may be taxed like other real estate.

We hold in the affirmative.

Submarine or undersea communications cables are akin to electric transmission lines which this
Court has recently declared in Manila Electric Company v. City Assessor and City Treasurer of
Lucena City,37 as "no longer exempted from real property tax" and may qualify as "machinery"
subject to real property tax under the Local Government Code. To the extent that the
equipment's location is determinable to be within the taxing authority's jurisdiction, the Court
sees no reason to distinguish between submarine cables used for communications and aerial or
underground wires or lines used for electric transmission, so that both pieces of property do not
merit a different treatment in the aspect of real property taxation. Both electric lines and
communications cables, in the strictest sense, are not directly adhered to the soil but pass
through posts, relays or landing stations, but both may be classified under the term "machinery"
as real property under Article 415(5)38 of the Civil Code for the simple reason that such pieces
of equipment serve the owner's business or tend to meet the needs of his industry or works that
are on real estate. Even objects in or on a body of water may be classified as such, as "waters"
is classified as an immovable under Article 415(8)39 of the Code. A classic example is a
boathouse which, by its nature, is a vessel and, therefore, a personal property but, if it is tied to
the shore and used as a residence, and since it floats on waters which is immovable, is
considered real property.40 Besides, the Court has already held that "it is a familiar phenomenon
to see things classed as real property for purposes of taxation which on general principle might
be considered personal property."41

Thus, absent any showing from Capwire of any express grant of an exemption for its lines and
cables from real property taxation, then this interpretation applies and Capwire's submarine
cable may be held subject to real property tax.

Having determined that Capwire is liable, and public respondents have the right to impose a real
property tax on its submarine cable, the issue that is unresolved is how much of such cable is
taxable based on the extent of Capwire's ownership or co-ownership of it and the length that is
laid within respondents' taxing jurisdiction. The matter, however, requires a factual
determination that is best performed by the Local and Central Boards of Assessment Appeals, a
remedy which the petitioner did not avail of.

At any rate, given the importance of the issue, it is proper to lay down the other legal bases for
the local taxing authorities' power to tax portions of the submarine cables of petitioner. It is not
in dispute that the submarine cable system's Landing Station in Nasugbu, Batangas is owned
by PLDT and not by Capwire. Obviously, Capwire is not liable for the real property tax on this
Landing Station. Nonetheless, Capwire admits that it co-owns the submarine cable system that
is subject of the tax assessed and being collected by public respondents. As the Court takes
judicial notice that Nasugbu is a coastal town and the surrounding sea falls within what the
United Nations Convention on the Law of the Sea (UNCLOS) would define as the country's
territorial sea (to the extent of 12 nautical miles outward from the nearest baseline, under Part II,
Sections 1 and 2) over which the country has sovereignty, including the seabed and subsoil, it
follows that indeed a portion of the submarine cable system lies within Philippine territory and
thus falls within the jurisdiction of the said local taxing authorities.42 It easily belies Capwire's
contention that the cable system is entirely in international waters. And even if such portion
does not lie in the 12-nautical-mile vicinity of the territorial sea but further inward, in Prof.
Magallona v. Hon. Ermita, et al.43 this Court held that "whether referred to as Philippine 'internal
waters' under Article I of the Constitution44 or as 'archipelagic waters' under UNCLOS Part III,
Article 49(1, 2, 4),45 the Philippines exercises sovereignty over the body of water lying landward
of (its) baselines, including the air space over it and the submarine areas underneath." Further,
under Part VI, Article 7946 of the UNCLOS, the Philippines clearly has jurisdiction with respect to
cables laid in its territory that are utilized in support of other installations and structures under its
jurisdiction.

And as far as local government units are concerned, the areas described above are to be
considered subsumed under the term "municipal waters" which, under the Local Government
Code, includes "not only streams, lakes, and tidal waters within the municipality, not being the
subject of private ownership and not comprised within the national parks, public forest, timber
lands, forest reserves or fishery reserves, but also marine waters included between two lines
drawn perpendicularly to the general coastline from points where the boundary lines of the
municipality or city touch the sea at low tide and a third line parallel with the general coastline
and fifteen (15) kilometers from it."47 Although the term "municipal waters" appears in the Code
in the context of the grant of quarrying and fisheries privileges for a fee by local
governments,48 its inclusion in the Code's Book II which covers local taxation means that it may
also apply as guide in determining the territorial extent of the local authorities' power to levy real
property taxation.

Thus, the jurisdiction or authority over such part of the subject submarine cable system lying
within Philippine jurisdiction includes the authority to tax the same, for taxation is one of the
three basic and necessary attributes of sovereignty,49 and such authority has been delegated by
the national legislature to the local governments with respect to real property taxation.50

As earlier stated, a way for Capwire to claim that its cable system is not covered by such
authority is by showing a domestic enactment or even contract, or an international agreement or
treaty exempting the same from real property taxation. It failed to do so, however, despite the
fact that the burden of proving exemption from local taxation is upon whom the subject real
property is declared.51 Under the Local Government Code, every person by or for whom real
property is declared, who shall claim tax exemption for such property from real property taxation
"shall file with the provincial, city or municipal assessor within thirty (30) days from the date of
the declaration of real property sufficient documentary evidence in support of such
claim."52 Capwire omitted to do so. And even under Capwire's legislative franchise, RA 4387,
which amended RA 2037, where it may be derived that there was a grant of real property tax
exemption for properties that are part of its franchise, or directly meet the needs of its
business,53 such had been expressly withdrawn by the Local Government Code, which took
effect on January 1, 1992, Sections 193 and 234 of which provide:54

Section 193. Withdrawal of Tax Exemption Privileges. - Unless otherwise provided in this
Code, tax exemptions or incentives granted to, or presently enjoyed by all persons,
whether natural or juridical, including government-owned or controlled corporations,
except local water districts, cooperatives duly registered under R.A. No. 6938, nonstock
and nonprofit hospitals and educational institutions, are hereby withdrawn upon the
effectivity of this Code.

xxxx
Section 234. Exemptions from Real Property Tax. - The following arc exempted from payment
of the real property tax:

(a) Real property owned by the Republic of the Philippines or any of its political subdivisions
except when the beneficial use thereof has been granted, for consideration of otherwise, to a
taxable person;

(b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques,

nonprofit or religious cemeteries and all lands, buildings, and improvements actually, directly,
and exclusively used for religious, charitable or educational purposes;

(c) All machineries and equipment that are actually, directly and exclusively used by local water
districts and government-owned or controlled corporations engaged in the supply and
distribution of water and/or generation and transmission of electric power;

(d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938;
and

(c) Machinery and equipment used for pollution control and environmental protection.

Except as provided herein, any exemption from payment of real property tax previously
granted to, or presently enjoyed by, all persons, whether natural or juridical, including all
government-owned or controlled corporations arc hereby withdrawn upon the effectivity
of this Code.55

Such express withdrawal had been previously held effective upon exemptions bestowed by
legislative franchises granted prior to the effectivity of the Local Government Code. 56 Capwire
fails to allege or provide any other privilege or exemption that were granted to it by the
legislature after the enactment of the Local Government Code. Therefore, the presumption
stays that it enjoys no such privilege or exemption. Tax exemptions are strictly construed
against the taxpayer because taxes are considered the lifeblood of the nation.57

WHEREFORE, the petition is DENIED. The Court of Appeals' Decision dated May 30, 2007 and
Resolution dated October 8, 2007 are AFFIRMED.

SO ORDERED.cralawlawlibrary

Velasco, Jr., (Chairperson), Peralta, Perez, and Mendoza,* JJ., concur.

Jardeleza, J., on leave.chanroblesvirtuallawlibrary

*
Designated Additional Member in lieu of Associate Justice Bicnvcnido L. Reyes, per Raffle
dated May 23, 20 16.
1
Penned by Associate Justice Aurora Santiago-Lagman, with Associate Justices Bienvenido L.
Reyes (now a member of this Court) and Apolinario D. Bruselas, Jr.; concurring; rollo, pp. 9-16.

Despite being impleaded in the petition, the Court ofAppeals is now being excluded as
respondent by this Court per Section 4(a), Rule 45 of the 1997 Rules of Civil Procedure.
2
Penned by Associate Justice Santiago-Lagman, with Associate Justices Bienvenido L. Reyes
and Apolinario D. Bruselas, Jr., concurring; id. at 18-19.

30
City of Lapu-lapu v. Philippine Economic Zone Authority, G.R. No. 184203, November 26,
2014; Camp John Hay Development Corporation v. Central Board of Assessment Appeals, G.R.
No. 169234, October 2, 2013; National Power Corporation v. Province of Quezon, 624 Phil 738
(2010).
32
National Power Corporation v. Municipal Government of Navotas, G.R. No. 192300,
November 24, 2014, quoting Ty v. Hon. Trampe, 321 Phil. 81, 88 (1995).
33
571 Phil. 281 (2008).
34
Cosmos Bottling Corp. v. Nagrama, Jr., supra, at 295-297. (Citations omitted)
35
Rollo, p. 37.
36
Petty v. Dayton Musicians' Association., 153 NE2d 218, affirmed 153 NE2d 223, quoted
in Vergel de Dios v. Bristol Laboratories Phils., Inc., 154 Phil. 311, 317-322 (1974).
37
G.R. No. 166102, August 5, 2015.
38
CIVIL. CODE, Art. 415. The following are immovable property: x x x x

(5) Machinery, receptacles, instruments or implements intended by the owner of the tenement
for an industry or works which may be carried on in a building or on a piece of land, and which
tend directly to meet the needs of the said industry or works;

According to Manila Electric Company v. City Assessor and City Treasurer of Lucena City,
supra note 37, the requirements for the machinery to 1) be placed in the tenement by the owner
of the tenement; and 2) that they be destined for use in the industry or work of the tenement are
not required by the Local Government Code for the machinery to be classified as real property
for purposes of taxation as such real property. All that is needed is for the machinery to tend to
directly meet the needs of the owner's industry or works.
39
CIVIL CODE, Art. 415. The following are immovable properly: x x x x
(8) Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and welters
either running or stagnant;

40
Paras, Edgardo L., Civil Code of the Philippines Annotated (16th cd. 2008), Vol. II, pp. 28-29.
41
Standard Oil Co. of New York v. Jaramillo, 44 Phil. 630, 633 (1923), cited in Callex (Phil.) Inc.
v. Central Board of Assessment Appeals, et al, 199 Phil. 487, 492 (1982) and Manila Electric
Company v. City Assessor and City Treasurer of Lucena City, supra note 37.
42
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS), PART II.

Territorial Sea and Contiguous Zone,

Section I. General Provisions

Article 2. Legal status of" the territorial sea, of the air space over the territorial sea and of its bed
and subsoil:

1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and,
in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea,
described as the territorial sea.

2. This sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil.

3. The sovereignty over the territorial sea is exercised subject to this Convention and to other
rules of international law.

Section. 2. Limits of the Territorial Sea Article 3. Breadth of the territorial sea.

Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding
12 nautical miles, measured from baselines determined in accordance wilh this Convention.
43
671 Phil. 244, 266-267 (2011).
44
CONSTITUTION, Art. I. National Territory. The national territory comprises the Philippine

archipelago, with all the islands and waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and
other submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal waters of the
Philippines.
45
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and
of their heel and subsoil. -

1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless of
their depth or distance from the coast.

2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed
and subsoil, and the resources contained therein.

xxxx

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

46
Article 79. Submarine cables and pipelines on the continental shelf
xxxx

4. Nothing in this Part (i.e., Part VI, Continental Shell) affects the right of the coastal SUite to
establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction
over cables and pipelines constructed or used in connection with the exploration of its
continental shelf or exploitation of its resources or the operations of artificial islands, installations
and structures under its jurisdiction.

47
LOCAL. GOVERNMENT CODE, Book II, Chapter 1, Sec. 131 (r) "Municipal Waters" includes
not only streams, lakes, and tidal waters within the municipality, not being the subject of private
ownership and not comprised within the national parks, public forest, timber lands, forest
reserves or fishery reserves, but also marine waters included between two lines drawn
perpendicularly to the general coastline from points where the boundary lines of the municipality
or city touch the sea at low tide and a third line parallel with the general coastline and fifteen
(15) kilometers from it. Where two (2) municipalities arc so situated on the opposite shores that
there is less than fifteen (15) kilometers of marine waters between them, the third line shall be
equally distant from opposite shores of their respective municipalities;
48
Id., at Sec. 138. Tax on Sand, Gravel and Other Quarry Resources. - The province may levy
and collect not more than ten percent (10%) of fair market value in the locality per cubic meter
of ordinary stones, sand, gravel, earth, and other quarry resources, as defined under the
National Internal Revenue Code, as amended, extracted from public lands or from the beds of
seas, lakes, rivers, streams, creeks, and other public waters within its territorial jurisdiction.

The permit to extract sand, gravel and other quarry resources shall be issued exclusively by the
provincial governor, pursuant to the ordinance of the Sangguniang Panlalawigan.

xxxx

Sec. 149. Fishery Rentals, Fees and Charges. - (a) Municipalities shall have the exclusive
authority to grant fishery privileges in the municipal waters and impose rentals, fees or charges
therefor in accordance with the provisions of this Section, x x x
49
Compagnie Financiere Sucres El Denrees, v. Commissioner of Internal Revenue, 531 Phil.
264, 267 (2006); Commissioner of Internal Revenue v. Solidbank Corp., 462 Phil. 96, 127
(2003).
50
LOCAL GOVERNMENT CODE, Title II; The City Government of Quezon City v. Bayan
Telecommunications, Inc., 519 Phil. 159, 174 (2006).
51
Camp John Hay Development Corporation v. Central Board of Assessment Appeals, G.R. No.
169234, October 2, 2013, citing the LOCAL GOVERNMENT CODE, Section 206.
52
LOCAL GOVERNMENT CODE, Sec. 206. Proof of Exemption of Real Properly from
Taxation. - Every person by or for whom real property is declared, who shall claim tax
exemption for such property under this Title shall file with the provincial, city or municipal
assessor within thirty (30) days from the date of the declaration of real property sufficient
documentary evidence in support of such claim including corporate charters, title of ownership,
articles of incorporation, by-laws, contracts, affidavits, certifications and mortgage deeds, and
similar documents.
53
Sec. 5. The same Act is further amended by adding between Sections thirteen and fourteen
thereof a new section which shall read as follows:
chanRoblesvirtualLawlibrary
Sec. 13-A. (a) The grantee shall be liable to pay the same taxes on its real estate, buildings,
and personal property, exclusive of this franchise, as other persons or corporations are now or
hereinafter may be required by law to pay.
54
See Manila Electric Company v. City Assessor and City Treasurer of Lucena City, supranote
37.
55
Emphasis supplied.
56
Manila Electric Company v. City Assessor and City Treasurer of Lucena City, supra note 37.
57
City of Manila v. Colet, G.R. No. 120051, December 10, 2014.

Philippine Supreme Court Jurisprudence > Year 2014 > September 2014 Decisions >
G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar
Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR.,
Bishop-Emeritus ofCaloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR.,
BagongAlyansang Makabayan, HON. NERI JAVIER COLMENARES, BayanMuna
Party-list, ROLAND G. SIMBULAN, PH.D., Junk VFAMovement, TERESITA R. PEREZ,
PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ. GONZALES,
Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang
Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D.,
A. EDSEL F. TUPAZ, Petitioners, v. SCOTT H. SWIFT in his capacity as Commander of
the U.S. 7th Fleet, MARK A. RICE in his capacity as Commanding Officer of the USS
Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as Commander-in-
Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO,
Secretary, Department of Foreign Affairs, HON. PAQUITO OCHOA, JR., Executive
Secretary, Office of the President, HON. VOLTAIRE T. GAZMIN, Secretary, Department
of National Defense, HON. RAMON JESUS P. PAJE, Secretary, Department of
Environment and Natural Resources, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine
Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO
D. ISORENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO O.
DOMINGO, Commandant of Armed Forces of the Philippines Commandand LT. GEN.
TERRY G. ROBLING, US Marine Corps Forces, Pacific and Balikatan 2013 Exercise
Co-Director, Respondents.:

G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar
Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR.,
Bishop-Emeritus ofCaloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR.,
BagongAlyansang Makabayan, HON. NERI JAVIER COLMENARES, BayanMuna
Party-list, ROLAND G. SIMBULAN, PH.D., Junk VFAMovement, TERESITA R. PEREZ,
PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ. GONZALES,
Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang
Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D.,
A. EDSEL F. TUPAZ, Petitioners, v. SCOTT H. SWIFT in his capacity as Commander of
the U.S. 7th Fleet, MARK A. RICE in his capacity as Commanding Officer of the USS
Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as Commander-in-
Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO,
Secretary, Department of Foreign Affairs, HON. PAQUITO OCHOA, JR., Executive
Secretary, Office of the President, HON. VOLTAIRE T. GAZMIN, Secretary, Department
of National Defense, HON. RAMON JESUS P. PAJE, Secretary, Department of
Environment and Natural Resources, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine
Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO
D. ISORENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO O.
DOMINGO, Commandant of Armed Forces of the Philippines Commandand LT. GEN.
TERRY G. ROBLING, US Marine Corps Forces, Pacific and Balikatan 2013 Exercise
Co-Director, Respondents.

EN BANC

G.R. No. 206510, September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST
REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus ofCaloocan, FRANCES Q.
QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P.
ARAULLO, RENATO M. REYES, JR., BagongAlyansang Makabayan, HON. NERI
JAVIER COLMENARES, BayanMuna Party-list, ROLAND G. SIMBULAN, PH.D.,
Junk VFAMovement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO,
Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI A. TAPANG,
PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR,
Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN A.
GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners, v. SCOTT
H. SWIFT in his capacity as Commander of the U.S. 7thFleet, MARK A. RICE in his
capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S.
AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, Department of Foreign
Affairs, HON. PAQUITO OCHOA, JR., Executive Secretary, Office of the
President, HON. VOLTAIRE T. GAZMIN, Secretary, Department of National
Defense, HON. RAMON JESUS P. PAJE, Secretary, Department of Environment
and Natural Resources, VICE ADMIRAL JOSE LUIS M. ALANO,Philippine Navy
Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO
D. ISORENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO
EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO
O. DOMINGO, Commandant of Armed Forces of the Philippines Commandand LT.
GEN. TERRY G. ROBLING, US Marine Corps Forces, Pacific and Balikatan 2013
Exercise Co-Director, Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the
issuance of a Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M.
No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental
Cases (Rules), involving violations of environmental laws and regulations in relation to
the grounding of the US military ship USS Guardian over the Tubbataha Reefs.

Factual Background

The name “Tubbataha” came from the Samal (seafaring people of southern Philippines)
language which means “long reef exposed at low tide.” Tubbataha is composed of two
huge coral atolls – the north atoll and the south atoll – and the Jessie Beazley Reef, a
smaller coral structure about 20 kilometers north of the atolls. The reefs of Tubbataha
and Jessie Beazley are considered part of Cagayancillo, a remote island municipality of
Palawan.1cralawlawlibrary

In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No.
306 issued by President Corazon C. Aquino on August 11, 1988. Located in the middle
of Central Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at
the heart of the Coral Triangle, the global center of marine biodiversity.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and
Cultural Organization (UNESCO) as a World Heritage Site. It was recognized as one of
the Philippines’ oldest ecosystems, containing excellent examples of pristine reefs and a
high diversity of marine life. The 97,030-hectare protected marine park is also an
important habitat for internationally threatened and endangered marine species.
UNESCO cited Tubbataha’s outstanding universal value as an important and significant
natural habitat for in situ conservation of biological diversity; an example representing
significant on-going ecological and biological processes; and an area of exceptional
natural beauty and aesthetic importance.2cralawlawlibrary
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as
the “Tubbataha Reefs Natural Park (TRNP) Act of 2009” “to ensure the protection and
conservation of the globally significant economic, biological, sociocultural, educational
and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present
and future generations.” Under the “no-take” policy, entry into the waters of TRNP is
strictly regulated and many human activities are prohibited and penalized or fined,
including fishing, gathering, destroying and disturbing the resources within the
TRNP. The law likewise created the Tubbataha Protected Area Management Board
(TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP.

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In

December 2012, the US Embassy in the Philippines requested diplomatic clearance for
the said vessel “to enter and exit the territorial waters of the Philippines and to arrive at
the port of Subic Bay for the purpose of routine ship replenishment, maintenance, and
crew liberty.”4 On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving
on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea,
the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs,
about 80 miles east-southeast of Palawan. No one was injured in the incident, and there
have been no reports of leaking fuel or oil.

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed
regret for the incident in a press statement.5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting at the Department of Foreign Affairs
(DFA) on February 4, “reiterated his regrets over the grounding incident and assured
Foreign Affairs Secretary Albert F. del Rosario that the United States will provide
appropriate compensation for damage to the reef caused by the ship.”6 By March 30,
2013, the US Navy-led salvage team had finished removing the last piece of the
grounded ship from the coral reef.

On April 17, 2013, the above-named petitioners on their behalf and in representation of
their respective sector/organization and others, including minors or generations yet
unborn, filed the present petition against Scott H. Swift in his capacity as Commander of
the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of the USS
Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific
and Balikatan 2013 Exercises Co-Director (“US respondents”); President Benigno S.
Aquino III in his capacity as Commander-in-Chief of the Armed Forces of the Philippines
(AFP), DFA Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa, Jr.,
Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P.
Paje (Department of Environment and Natural Resources), Vice-Admiral Jose Luis M.
Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General Virgilio O. Domingo (AFP
Commandant), collectively the “Philippine respondents.”

The Petition

Petitioners claim that the grounding, salvaging and post-salvaging operations of

the USS Guardian cause and continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo,
Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-
Tawi, which events violate their constitutional rights to a balanced and healthful ecology.
They also seek a directive from this Court for the institution of civil, administrative and
criminal suits for acts committed in violation of environmental laws and regulations in
connection with the grounding incident.

Specifically, petitioners cite the following violations committed by US respondents under

R.A. No. 10067: unauthorized entry (Section 19); non-payment of conservation fees
(Section 21); obstruction of law enforcement officer (Section 30); damages to the reef
(Section 20); and destroying and disturbing resources (Section 26[g]). Furthermore,
petitioners assail certain provisions of the Visiting Forces Agreement (VFA) which they
want this Court to nullify for being unconstitutional.

The numerous reliefs sought in this case are set forth in the final prayer of the petition,
to wit:chanRoblesvirtualLawlibrary

1. WHEREFORE, in view of the foregoing, Petitioners respectfully pray that

the Honorable Court:chanRoblesvirtualLawlibrary

2. Immediately issue upon the filing of this petition a Temporary

Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which
shall, in particular,

a. Order Respondents and any person acting on their behalf,

to cease and desist all operations over the Guardian grounding
incident;

b. Initially demarcating the metes and bounds of the damaged

area as well as an additional buffer zone;

c. Order Respondents to stop all port calls and war games under
‘Balikatan’ because of the absence of clear guidelines, duties, and
liability schemes for breaches of those duties, and require
Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage
under the Visiting Forces Agreement in particular.

d. Temporarily define and describe allowable activities of

ecotourism, diving, recreation, and limited commercial activities by
fisherfolk and indigenous communities near or around the TRNP
but away from the damaged site and an additional buffer zone;

3. After summary hearing, issue a Resolution extending the TEPO until

further orders of the Court;

4. After due proceedings, render a Decision which shall include, without

limitation:chanRoblesvirtualLawlibrary
a. Order Respondents Secretary of Foreign Affairs, following the
dispositive portion of Nicolas v. Romulo, “to forthwith negotiate
with the United States representatives for the appropriate
agreement on [environmental guidelines and environmental
accountability] under Philippine authorities as provided in Art. V[ ]
of the VFA…”

b. Direct Respondents and appropriate agencies to commence

administrative, civil, and criminal proceedings against erring
officers and individuals to the full extent of the law, and to make
such proceedings public;

c. Declare that Philippine authorities may exercise primary and

exclusive criminal jurisdiction over erring U.S. personnel under the
circumstances of this case;

d. Require Respondents to pay just and reasonable compensation in

the settlement of all meritorious claims for damages caused to the
Tubbataha Reef on terms and conditions no less severe than
those applicable to other States, and damages for personal injury
or death, if such had been the case;

e. Direct Respondents to cooperate in providing for the attendance

of witnesses and in the collection and production of evidence,
including seizure and delivery of objects connected with the
offenses related to the grounding of the Guardian;

f. Require the authorities of the Philippines and the United States to

notify each other of the disposition of all cases, wherever heard,
related to the grounding of the Guardian;

g. Restrain Respondents from proceeding with any

purported restoration, repair, salvage or post salvage plan or
plans, including cleanup plans covering the damaged area of the
Tubbataha Reef absent a just settlement approved by the
Honorable Court;

h. Require Respondents to engage in stakeholder and LGU

consultations in accordance with the Local Government Code and
R.A. 10067;

i. Require Respondent US officials and their representatives to

place a deposit to the TRNP Trust Fund defined under Section 17
of RA 10067 as a bona fide gesture towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate the

areas affected by the grounding of the Guardian in light of
Respondents’ experience in the Port Royale grounding in 2009,
among other similar grounding incidents;
 k. Require Respondents to regularly publish on a quarterly basis and
in the name of transparency and accountability
such environmental damage assessment, valuation, and valuation
methods, in all stages of negotiation;

l. Convene a multisectoral technical working group to provide

scientific and technical support to the TPAMB;

m. Order the Department of Foreign Affairs, Department of National

Defense, and the Department of Environment and Natural
Resources to review the Visiting Forces Agreement and the
Mutual Defense Treaty to consider whether their provisions allow
for the exercise of erga omnes rights to a balanced and healthful
ecology and for damages which follow from any violation of those
rights;

n. Narrowly tailor the provisions of the Visiting Forces Agreement for

purposes of protecting the damaged areas of TRNP;

o. Declare the grant of immunity found in Article V (“Criminal

Jurisdiction”) and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for violating
the preemptory norm of nondiscrimination incorporated as part of
the law of the land under Section 2, Article II, of the Philippine
Constitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in

all other respects; and

5. Provide just and equitable environmental rehabilitation measures and

such other reliefs as are just and equitable under the
premises.7 (Underscoring supplied.)

Since only the Philippine respondents filed their comment8 to the petition, petitioners
also filed a motion for early resolution and motion to proceed ex parte against the US
respondents.9cralawlawlibrary

Respondents’ Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and ocular
inspection and production orders, respondents assert that: (1) the grounds relied upon
for the issuance of a TEPO or writ of Kalikasan have become fait accompli as the
salvage operations on the USS Guardian were already completed; (2) the petition is
defective in form and substance; (3) the petition improperly raises issues involving the
VFA between the Republic of the Philippines and the United States of America; and (4)
the determination of the extent of responsibility of the US Government as regards the
damage to the Tubbataha Reefs rests exclusively with the executive branch.

The Court’s Ruling

As a preliminary matter, there is no dispute on the legal standing of petitioners to file the
present petition.

Locus standi is “a right of appearance in a court of justice on a given

question.”10 Specifically, it is “a party’s personal and substantial interest in a case where
he has sustained or will sustain direct injury as a result” of the act being challenged, and
“calls for more than just a generalized grievance.”11 However, the rule on standing is a
procedural matter which this Court has relaxed for non-traditional plaintiffs like ordinary
citizens, taxpayers and legislators when the public interest so requires, such as when
the subject matter of the controversy is of transcendental importance, of overreaching
significance to society, or of paramount public interest.12cralawlawlibrary

In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the “public right” of
citizens to “a balanced and healthful ecology which, for the first time in our constitutional
history, is solemnly incorporated in the fundamental law.” We declared that the right to a
balanced and healthful ecology need not be written in the Constitution for it is assumed,
like other civil and political rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental importance with
intergenerational implications. Such right carries with it the correlative duty to refrain
from impairing the environment.14cralawlawlibrary

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court
ruled that not only do ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future
generations. Thus:chanRoblesvirtualLawlibrary

Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to
sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers the “rhythm
and harmony of nature.”Nature means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country’s forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present as well
as future generations. Needless to say, every generation has a responsibility to the next
to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors’ assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come.15 (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen
suit in environmental cases. The provision on citizen suits in the Rules “collapses the
traditional rule on personal and direct interest, on the principle that humans are stewards
of nature.”16cralawlawlibrary

Having settled the issue of locus standi, we shall address the more fundamental
question of whether this Court has jurisdiction over the US respondents who did not
submit any pleading or manifestation in this case.

The immunity of the State from suit, known also as the doctrine of sovereign immunity or
non-suability of the State,17 is expressly provided in Article XVI of the 1987
Constitution which states:chanRoblesvirtualLawlibrary

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we discussed the principle of state
immunity from suit, as follows:chanRoblesvirtualLawlibrary

The rule that a state may not be sued without its consent, now expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II,
Section 2. x x x.

Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this doctrine, as
accepted by the majority of states, such principles are deemed incorporated in the law of
every civilized state as a condition and consequence of its membership in the society of
nations. Upon its admission to such society, the state is automatically obligated to
comply with these principles in its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the justification
given by Justice Holmes that “there can be no legal right against the authority which
makes the law on which the right depends.”[Kawanakoa v. Polybank, 205 U.S. 349]
There are other practical reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction, the added inhibition
is expressed in the maxim par in parem, non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated case, “unduly vex the peace of
nations.” [De Haber v. Queen of Portugal, 17 Q. B. 171]

While the doctrine appears to prohibit only suits against the state without its consent, it
is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to satisfy
the same, such as the appropriation of the amount needed to pay the damages awarded
against them, the suit must be regarded as against the state itself although it has not
been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the
state may move to dismiss the complaint on the ground that it has been filed without its
consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment
which reads:chanRoblesvirtualLawlibrary

The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of
foreign states from the jurisdiction of local courts, as follows:chanRoblesvirtualLawlibrary

The precept that a State cannot be sued in the courts of a foreign state is a long-
standing rule of customary international law then closely identified with the personal
immunity of a foreign sovereign from suit and, with the emergence of democratic states,
made to attach not just to the person of the head of state, or his representative, but also
distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit are
those of a foreign government done by its foreign agent, although not necessarily
a diplomatic personage, but acting in his official capacity, the complaint could be
barred by the immunity of the foreign sovereign from suit without its
consent. Suing a representative of a state is believed to be, in effect, suing the state
itself. The proscription is not accorded for the benefit of an individual but for the State, in
whose service he is, under the maxim - par in parem, non habet imperium - thatall states
are sovereign equals and cannot assert jurisdiction over one another. The implication, in
broad terms, is that if the judgment against an official would require the state itself to
perform an affirmative act to satisfy the award, such as the appropriation of the amount
needed to pay the damages decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally impleaded.21 (Emphasis
supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the
privilege is not an immunity from the observance of the law of the territorial sovereign or
from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.22cralawlawlibrary

In United States of America v. Judge Guinto,23 one of the consolidated cases therein
involved a Filipino employed at Clark Air Base who was arrested following a buy-bust
operation conducted by two officers of the US Air Force, and was eventually dismissed
from his employment when he was charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against the military officers, the latter
moved to dismiss the case on the ground that the suit was against the US Government
which had not given its consent. The RTC denied the motion but on a petition
for certiorari and prohibition filed before this Court, we reversed the RTC and dismissed
the complaint. We held that petitioners US military officers were acting in the exercise of
their official functions when they conducted the buy-bust operation against the
complainant and thereafter testified against him at his trial. It follows that for discharging
their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.

This traditional rule of State immunity which exempts a State from being sued in the
courts of another State without the former’s consent or waiver has evolved into a
restrictive doctrine which distinguishes sovereign and governmental acts (jure
imperii) from private, commercial and proprietary acts (jure gestionis). Under the
restrictive rule of State immunity, State immunity extends only to acts jure imperii. The
restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic
affairs.24cralawlawlibrary

In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity

principle, thus:chanRoblesvirtualLawlibrary

It is a different matter where the public official is made to account in his capacity
as such for acts contrary to law and injurious to the rights of plaintiff. As was
clearly set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et
al. vs. Aligaen, etc., et al.: “Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers are not acts of the State,
and an action against the officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a suit against the State within
the rule of immunity of the State from suit. In the same tenor, it has been said that an
action at law or suit in equity against a State officer or the director of a State department
on the ground that, while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent.” The
rationale for this ruling is that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.

xxxx

The aforecited authorities are clear on the matter. They state that the doctrine of
immunity from suit will not apply and may not be invoked where the public official
is being sued in his private and personal capacity as an ordinary citizen. The cloak
of protection afforded the officers and agents of the government is removed the moment
they are sued in their individual capacity. This situation usually arises where the public
official acts without authority or in excess of the powers vested in him. It is a well-settled
principle of law that a public official may be liable in his personal private capacity
for whatever damage he may have caused by his act done with malice and in bad
faith, or beyond the scope of his authority or jurisdiction.26 (Emphasis supplied.)

In this case, the US respondents were sued in their official capacity as commanding
officers of the US Navy who had control and supervision over the USS Guardian and its
crew. The alleged act or omission resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they were performing official military duties.
Considering that the satisfaction of a judgment against said officials will require remedial
actions and appropriation of funds by the US government, the suit is deemed to be one
against the US itself. The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position
that the conduct of the US in this case, when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the
matter within the ambit of Article 31 of the United Nations Convention on the Law of the
Sea (UNCLOS). He explained that while historically, warships enjoy sovereign immunity
from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception
to this rule in cases where they fail to comply with the rules and regulations of the
coastal State regarding passage through the latter’s internal waters and the territorial
sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a
matter of long-standing policy the US considers itself bound by customary international
rules on the “traditional uses of the oceans” as codified in UNCLOS, as can be gleaned
from previous declarations by former Presidents Reagan and Clinton, and the US
judiciary in the case of United States v. Royal Caribbean Cruise Lines,
Ltd.27cralawlawlibrary

The international law of the sea is generally defined as “a body of treaty rules and
customary norms governing the uses of the sea, the exploitation of its resources, and
the exercise of jurisdiction over maritime regimes. It is a branch of public international
law, regulating the relations of states with respect to the uses of the oceans.”28 The
UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982
at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State

sovereignty (mare clausum) and the principle of freedom of the high seas (mare
liberum).29 The freedom to use the world’s marine waters is one of the oldest customary
principles of international law.30 The UNCLOS gives to the coastal State sovereign rights
in varying degrees over the different zones of the sea which are: 1) internal waters, 2)
territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It
also gives coastal States more or less jurisdiction over foreign vessels depending on
where the vessel is located.31cralawlawlibrary

Insofar as the internal waters and territorial sea is concerned, the Coastal State
exercises sovereignty, subject to the UNCLOS and other rules of international law. Such
sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil.32cralawlawlibrary

In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy
sovereign immunity subject to the following exceptions:chanRoblesvirtualLawlibrary

Article 30
Non-compliance by warships with the laws and regulations
of the coastal State

If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal State may require it to leave the
territorial sea immediately.

Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the
coastal State resulting from the non-compliance by a warship or other
government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage through the territorial sea or
with the provisions of this Convention or other rules of international law.

Article 32
Immunities of warships and other government ships
operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31,
nothing in this Convention affects the immunities of warships and other government
ships operated for non-commercial purposes. (Emphasis supplied.)

A foreign warship’s unauthorized entry into our internal waters with resulting damage to
marine resources is one situation in which the above provisions may apply.But what if
the offending warship is a non-party to the UNCLOS, as in this case, the US?

An overwhelming majority – over 80% -- of nation states are now members of UNCLOS,
but despite this the US, the world’s leading maritime power, has not ratified it.

While the Reagan administration was instrumental in UNCLOS' negotiation and drafting,
the U.S. delegation ultimately voted against and refrained from signing it due to
concerns over deep seabed mining technology transfer provisions contained in Part XI.
In a remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to revise the objectionable
provisions. The revisions satisfied the Clinton administration, which signed the revised
Part XI implementing agreement in 1994. In the fall of 1994, President Clinton
transmitted UNCLOS and the Part XI implementing agreement to the Senate requesting
its advice and consent. Despite consistent support from President Clinton, each of his
successors, and an ideologically diverse array of stakeholders, the Senate has since
withheld the consent required for the President to internationally bind the United States
to UNCLOS.

While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the
108th and 110th Congresses, its progress continues to be hamstrung by significant
pockets of political ambivalence over U.S. participation in international institutions. Most
recently, 111th Congress SFRC Chairman Senator John Kerry included “voting out”
UNCLOS for full Senate consideration among his highest priorities. This did not occur,
and no Senate action has been taken on UNCLOS by the
112th Congress.34chanrobleslaw

Justice Carpio invited our attention to the policy statement given by President Reagan
on March 10, 1983 that the US will “recognize the rights of the other states in the waters
off their coasts, as reflected in the convention [UNCLOS], so long as the rights and
freedom of the United States and others under international law are recognized by such
coastal states”, and President Clinton’s reiteration of the US policy “to act in a manner
consistent with its [UNCLOS] provisions relating to traditional uses of the oceans and to
encourage other countries to do likewise.” Since Article 31 relates to the “traditional
uses of the oceans,” and “if under its policy, the US ‘recognize[s] the rights of the other
states in the waters off their coasts,’” Justice Carpio postulates that “there is more
reason to expect it to recognize the rights of other states in their internal waters, such as
the Sulu Sea in this case.”

As to the non-ratification by the US, Justice Carpio emphasizes that “the US’ refusal to
join the UNCLOS was centered on its disagreement with UNCLOS’ regime of deep
seabed mining (Part XI) which considers the oceans and deep seabed commonly owned
by mankind,” pointing out that such “has nothing to do with its [the US’] acceptance of
customary international rules on navigation.”

It may be mentioned that even the US Navy Judge Advocate General’s Corps publicly
endorses the ratification of the UNCLOS, as shown by the following statement posted on
its official website:chanRoblesvirtualLawlibrary

The Convention is in the national interest of the United States because it establishes
stable maritime zones, including a maximum outer limit for territorial seas; codifies
innocent passage, transit passage, and archipelagic sea lanes passage rights; works
against “jurisdictional creep” by preventing coastal nations from expanding their own
maritime zones; and reaffirms sovereign immunity of warships, auxiliaries and
government aircraft.

xxxx

Economically, accession to the Convention would support our national interests by

enhancing the ability of the US to assert its sovereign rights over the resources of one of
the largest continental shelves in the world. Further, it is the Law of the Sea Convention
that first established the concept of a maritime Exclusive Economic Zone out to 200
nautical miles, and recognized the rights of coastal states to conserve and manage the
natural resources in this Zone.35chanrobleslaw

We fully concur with Justice Carpio’s view that non-membership in the UNCLOS does
not mean that the US will disregard the rights of the Philippines as a Coastal State over
its internal waters and territorial sea. We thus expect the US to bear “international
responsibility” under Art. 31 in connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-
time ally and trading partner, which has been actively supporting the country’s efforts to
preserve our vital marine resources, would shirk from its obligation to compensate the
damage caused by its warship while transiting our internal waters. Much less can we
comprehend a Government exercising leadership in international affairs, unwilling to
comply with the UNCLOS directive for all nations to cooperate in the global task to
protect and preserve the marine environment as provided in Article
197, viz:chanRoblesvirtualLawlibrary

Article 197
Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis,

directly or through competent international organizations, in formulating and elaborating
international rules, standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the marine environment,
taking into account characteristic regional features.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond

dispute. Although the said treaty upholds the immunity of warships from the jurisdiction
of Coastal States while navigating the latter’s territorial sea, the flag States shall be
required to leave the territorial sea immediately if they flout the laws and regulations of
the Coastal State, and they will be liable for damages caused by their warships or any
other government vessel operated for non-commercial purposes under Article 31.

Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise,
they invoke federal statutes in the US under which agencies of the US have statutorily
waived their immunity to any action. Even under the common law tort claims, petitioners
asseverate that the US respondents are liable for negligence, trespass and nuisance.

We are not persuaded.

The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines to promote “common security interests” between the
US and the Philippines in the region. It provides for the guidelines to govern such visits
of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.36 The
invocation of US federal tort laws and even common law is thus improper considering
that it is the VFA which governs disputes involving US military ships and crew navigating
Philippine waters in pursuance of the objectives of the agreement.

As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction
and not to special civil actions such as the present petition for issuance of a writ
of Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a
criminal case against a person charged with a violation of an environmental law is to be
filed separately:chanRoblesvirtualLawlibrary

Sec. 17. Institution of separate actions.—The filing of a petition for the issuance of the
writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative
actions.

In any case, it is our considered view thata ruling on the application or non-application of
criminal jurisdiction provisions of the VFA to US personnel who may be found
responsible for the grounding of the USS Guardian, would be premature and beyond the
province of a petition for a writ of Kalikasan. We also find it unnecessary at this point to
determine whether such waiver of State immunity is indeed absolute. In the same vein,
we cannot grant damages which have resulted from the violation of environmental laws.
The Rules allows the recovery of damages, including the collection of administrative
fines under R.A. No. 10067, in a separate civil suit or that deemed instituted with the
criminal action charging the same violation of an environmental law.37cralawlawlibrary

Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for
issuance of a writ of Kalikasan, to wit:chanRoblesvirtualLawlibrary
Sec. 15. Judgment.—Within sixty (60) days from the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the writ
of kalikasan.

The reliefs that may be granted under the writ are the
following:chanRoblesvirtualLawlibrary

(a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;

(b) Directing the respondent public official, government agency, private person or entity
to protect, preserve,rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or entity
to monitor strict compliance with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or
entity to make periodic reports on the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection,preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners. (Emphasis
supplied.)

We agree with respondents (Philippine officials) in asserting that this petition has
become moot in the sense that the salvage operation sought to be enjoined or
restrained had already been accomplished when petitioners sought recourse from this
Court. But insofar as the directives to Philippine respondents to protect and rehabilitate
the coral reef structure and marine habitat adversely affected by the grounding incident
are concerned, petitioners are entitled to these reliefs notwithstanding the completion of
the removal of the USS Guardian from the coral reef.

However, we are mindful of the fact that the US and Philippine governments both
expressed readiness to negotiate and discuss the matter of compensation for the
damage caused by the USS Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the extent of the damage and
appropriate methods of rehabilitation.

Exploring avenues for settlement of environmental cases is not proscribed by the Rules.
As can be gleaned from the following provisions, mediation and settlement are available
for the consideration of the parties, and which dispute resolution methods are
encouraged by the court, to wit:chanRoblesvirtualLawlibrary

RULE 3

xxxx

Sec. 3. Referral to mediation.–At the start of the pre-trial conference, the court shall
inquire from the parties if they have settled the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if authorized by their clients, to the
Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the
court shall refer the case to the clerk of court or legal researcher for mediation.

Mediation must be conducted within a non-extendible period of thirty (30) days from
receipt of notice of referral to mediation.

The mediation report must be submitted within ten (10) days from the expiration of the
30-day period.

Sec. 4. Preliminary conference.–If mediation fails, the court will schedule the
continuance of the pre-trial. Before the scheduled date of continuance, the court may
refer the case to the branch clerk of court for a preliminary conference for the following
purposes:chanRoblesvirtualLawlibrary

(a) To assist the parties in reaching a settlement;

xxxx

Sec. 5. Pre-trial conference; consent decree.–The judge shall put the parties and their
counsels under oath, and they shall remain under oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the
dispute. The judge may issue a consent decree approving the agreement between the
parties in accordance with law, morals, public order and public policy to protect the right
of the people to a balanced and healthful ecology.

xxxx

Sec. 10. Efforts to settle.–The court shall endeavor to make the parties to agree to
compromise or settle in accordance with law at any stage of the proceedings before
rendition of judgment. (Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile
cruiser, the USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef
Runway and remained stuck for four days. After spending $6.5 million restoring the coral
reef, the US government was reported to have paid the State of Hawaii $8.5 million in
settlement over coral reef damage caused by the grounding.38cralawlawlibrary

To underscore that the US government is prepared to pay appropriate compensation for

the damage caused by the USS Guardian grounding, the US Embassy in the Philippines
has announced the formation of a US interdisciplinary scientific team which will “initiate
discussions with the Government of the Philippines to review coral reef rehabilitation
options in Tubbataha, based on assessments by Philippine-based marine scientists.”
The US team intends to “help assess damage and remediation options, in coordination
with the Tubbataha Management Office, appropriate Philippine government entities,
non-governmental organizations, and scientific experts from Philippine
universities.”39cralawlawlibrary

A rehabilitation or restoration program to be implemented at the cost of the violator is

also a major relief that may be obtained under a judgment rendered in a citizens’ suit
under the Rules, viz:chanRoblesvirtualLawlibrary

RULE 5

Section 1. Reliefs in a citizen suit.–If warranted, the court may grant to the plaintiff
proper reliefs which shall include the protection, preservation or rehabilitation of the
environment and the payment of attorney’s fees, costs of suit and other litigation
expenses. It may also require the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be borne by the violator, or to
contribute to a special trust fund for that purpose subject to the control of the court.

In the light of the foregoing, the Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures through diplomatic channels. Resolution of
these issues impinges on our relations with another State in the context of common
security interests under the VFA. It is settled that “[t]he conduct of the foreign relations of
our government is committed by the Constitution to the executive and legislative—“the
political”--departments of the government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or
decision.”40cralawlawlibrary

On the other hand, we cannot grant the additional reliefs prayed for in the petition to
order a review of the VFA and to nullify certain immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA
was duly concurred in by the Philippine Senate and has been recognized as a treaty by
the United States as attested and certified by the duly authorized representative of the
United States government. The VFA being a valid and binding agreement, the parties
are required as a matter of international law to abide by its terms and provisions.42 The
present petition under the Rules is not the proper remedy to assail the constitutionality of
its provisions.

WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is
hereby DENIED.

No pronouncement as to costs.

SO ORDERED.cralawred

Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Perez,
Reyes, and Perlas-Bernabe, JJ., concur.
Sereno, C.J., see concurring opinion.
Mendoza, J., on official leave.
Leonen, J., see separate concurring opinion.
Jardeleza, J., no part.

Endnotes:
1
Tubbataha Reefs Natural Park – .
2
Id.
3
“AN ACT ESTABLISHING THE TUBBATAHA REEFS NATURAL PARK IN THE
PROVINCE OF PALAWAN AS A PROTECTED AREA UNDER THE NIPAS ACT (R.A.
7586) AND THE STRATEGIC ENVIRONMENTAL PLAN (SEP) FOR PALAWAN ACT
(R.A. 7611), PROVIDING FOR ITS MANAGEMENT AND FOR OTHER PURPOSES.”
4
Rollo, pp. 194-199.
5
<http: manila.usembassy.gov="" pressphotoreleases2013="" navy-commander-
expresses-regret-concerning-uss-guardian-grounding.html="">.

“Joint Statement Between The Philippines And The United States On The USS
[6

Guardian Grounding On Tubbataha Reef,” February 5, 2013.Accessed at US Embassy

website - .
7
Rollo, pp. 89-92.
8
Id. at 156-191. In a letter dated 27 May 2013, the DFA’s Office of Legal Affairs
informed this Court that it has received from the Embassy of the United States the
Notice sent by this Court, with a request to return the same. It said that the US Embassy
“asserts that it is not an agent for the service of process upon the individuals named in
court documents, and that the transmission of the Court documents should have been
done through diplomatic channels.” (Id. at 255.)
9
Id. at 215-247.
10
Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254,
citing David v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006).
11
Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005), citing Integrated Bar of the
Philippines v. Zamora, 392 Phil. 618, 632-633 (2000).
12
Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935& 193036,
December 7, 2010, 637 SCRA 78, 151, citing Social Justice Society (SJS) v. Dangerous
Drugs Board, et al., 591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department of
Energy, 346 Phil. 321 (1997) and De Guia v. COMELEC, G.R. No. 104712, May 6,
1992, 208 SCRA 420, 422.
13
G.R. No. 101083, July 30, 1993, 224 SCRA 792.
14
Id. at 804-805.
15
Id. at 802-803.
16
See Annotation to the Rules of Procedure for Environmental Cases.
17
Air Transportation Office v. Ramos, G.R. No. 159402, February 23, 2011, 644 SCRA
36, 41.
18
261 Phil. 777 (1990).
19
Id. at 790-792.
20
445 Phil. 250 (2003).
21
Id. at 269-270. Citations omitted.
22
Id. at 268, citing J.L. Brierly, “The Law of Nations,” Oxford University Press,
6th Edition, 1963, p. 244.
23
Supra note 18, at 788-789 & 797.
24
United States of America v. Ruiz, 221 Phil. 179, 182-183 & 184 (1985).
25
G.R. No. 90314, November 27, 1990, 191 SCRA 713.
26
Id. at 727-728.
27
24 FSupp. 2d 155, 159 (D.P.R. 1997).
28
Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1.
29
Bertrand Theodor L. Santos, “Untangling a Tangled Net of Confusion: Reconciling the
Philippine Fishery Poaching Law and the UNCLOS” World Bulletin, Vol. 18: 83-116
(July-December 2002), p. 96.
30
Anne Bardin, “Coastal State’s Jurisdiction Over Foreign Vessels” 14 Pace Int’l. Rev.
27, 28 (2002).
31
Id. at 29.
32
Art. 2, UNCLOS.
33
Art. 29 of UNCLOS defines warship as “a ship belonging to the armed forces of a
State bearing the external marks distinguishing such ships of its nationality, under the
command of an officer duly commissioned by the government of the State and whose
name appears in the appropriate service list or its equivalent, and manned by a crew
which is under regular armed forces discipline.”

Commander Robert C. “Rock” De Tolve, JAGC, USN, “At What Cost? America’s
34

UNCLOS Allergy in the Time of ‘Lawfare’”, 61 Naval L. Rev. 1, 3 (2012).

35
<http://www.jag.navy.mil/organization/code 10 law of the sea.htm>.
36
See BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623,
652 (2000).
37
Rule 10, Rules of Procedure for Environmental Cases.
38
“USS Port Royal (CG73)” – ;“USS Port Royal Returns to Homeport” , Navy Military
Home Page, Story Number NNS090211-02 Release Date: 2/11/2009 6:00 AM – ; “Navy,
state reach settlement on USS Port Royal damage”, posted Feb. 05, 2011 8:26 AM –.
39
.
40
Vinuya v. Romulo, G.R. No. 162230, April 28, 2010, 619 SCRA 533, 559, citing Oetjen
v. Central Leather Co., 246 U.S. 297, 302 (1918).
41
Supra note 36.
42
Nicolas v. Secretary Romulo, et al., 598 Phil. 262, 280 & 285.

CONCURRING OPINION

SERENO, CJ:

I concur.

Sovereign immunity serves as a bar for the foreign sovereign to be subjected to the trial
process. Supported both by local jurisprudence, as as international law (which forms
part of the Philippine legal structure), the doctrine should not be reversed in this
particular case.

SOVEREIGN IMMUNITY IN PHILIPPINE LAW

Sovereign immunity in Philippine law has been lengthily discussed by the Court in China
National Machinery & Equipment Corp. v. Hon. Santamaria in the following
manner:chanRoblesvirtualLawlibrary

This Court explained the doctrine of sovereign immunity in Holy See v. Rosario, to
wit:chanRoblesvirtualLawlibrary

There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot,
without its consent, be made a respondent in the courts of another sovereign. According
to the newer or restrictive theory, the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state, but not with regard to private acts or
acts jure gestionis.

xxxx
The restrictive theory came about because of the entry of sovereign states into purely
commercial activities remotely connected with the discharge of governmental functions.
This is particularly true with respect to the Communist states which took control of
nationalized business activities and international trading.
In JUSMAG v. National Labor Relations Commission, this Court affirmed the Philippines’
adherence to the restrictive theory as follows:chanRoblesvirtualLawlibrary

The doctrine of state immunity from suit has undergone further metamorphosis. The
view evolved that the existence of a contract does not, per se, mean that sovereign
states may, at all times, be sued in local courts. The complexity of relationships between
sovereign states, brought about by their increasing commercial activities, mothered a
more restrictive application of the doctrine.

xxxx

As it stands now, the application of the doctrine of immunity from suit has been
restricted to sovereign or governmental activities (jure imperii). The mantle of state
immunity cannot be extended to commercial, private and proprietary acts (jure
gestionis).

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal
nature of the act involved – whether the entity claiming immunity performs
governmental, as opposed to proprietary, functions. As held in United States of
America v. Ruiz –

The restrictive application of State immunity is proper only when the proceedings arise
out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a State may be said to have descended to the level
of an individual and can thus be deemed to have tacitly given its consent to be sued only
when it enters into business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions.1 (Emphases supplied. Citations omitted)

From the Philippine perspective, what determines its ability to impose its law upon the
foreign entity would be the act of the foreign entity – on whether the act is an aspect of
its sovereign function or a private act.

In this case, the two Naval Officers were acting pursuant to their function as the
commanding officers of a warship, traversing Philippine waters under the authority of the
Visiting Forces Agreement (VFA). While the events beg the question of what the warship
was doing in that area, when it should have been headed towards Indonesia, its
presence in Philippine waters is not wholly unexplainable. The VFA is a treaty, and it
has been affirmed as valid by this Court in Bayan v. Zamora,2 and affirmed in Lim v.
Executive Secretary3 and Nicolas v. Romulo.4 It has, in the past, been used to justify
the presence of United States Armed Forces in the Philippines. In this respect therefore,
acts done pursuant to the VFA take the nature of governmental acts, since both the
United States and Philippine governments recognize the VFA as a treaty with
corresponding obligations, and the presence of these two Naval Officers and the
warship in Philippine waters fell under this legal regime.

From this, the applicability of sovereign immunity cannot be denied as to the presence of
the warship and its officers in Philippine waters. This does not, however, put an end to
the discussion, because even if immunity is applicable to their presence, the specific act
of hitting the Tubbataha Reef and causing damage thereto is a presumably tortuous act.
Can these kinds of acts also be covered by the principle of sovereign immunity?
TORT EXCEPTION

Under the regime of international law, there is an added dimension to sovereign

immunity exceptions: the tort exception. Whether this has evolved into a customary
norm is still debatable; what is important to emphasize is that while some states have
enacted legislation to allow the piercing of sovereign immunity in tortuous actions, the
Foreign Sovereign Immunities Act of 1976 of the United States (FSIA)5 contains such
privilege. Specifically, the FSIA contains exceptions for (1) waiver;6 (2) commercial
activity;7 (3) expropriation;8 (4) property rights acquired through succession or
donation;9 (5) damages for personal injury or death or damage to or loss of
property;10 (6) enforcement of an arbitration agreement;11 (7) torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material support to such an act, if
the state sponsors terrorism;12 and (8) maritime lien in a suit for admiralty based on
commercial activity.13cralawlawlibrary

Any claim under the FSIA goes through a hierarchical process between the diplomatic
channels of the United States and the forum state. However, by explicitly including the
tort exception in its local legislation under the 4th exception discussed above - with due
consideration to the heavy requirements for any doctrine to attain customary status - it
becomes plausible that the exception can be applied to the United States, if not through
customary international law, then by reason of acquiescence or estoppel.

As explained by Jasper Finke,

x x x x the current state practice may not support a rule of customary

international law according to which states must deny sovereign immunity in case of
tortious acts committed by another country in the forum state. Even though such an
obligation is included in the ECSI and the UNCJIS, a considerable number of states do
not apply this exception. But this does not answer the question whether states are
prohibited from doing so. Section 1605 of the FSIA, for example, denies immunity in
cases ‘in which money damages are sought … for personal injury or death, or damage
to or loss of property, occurring in the United States and caused by the tortious act or
omission of that foreign state’. If sovereign immunity is the default rule and all
exceptions must reflect customary international law, and if the tort exception has not yet
evolved into custom, then states such as the US, UK, Canada, and Australia that have
included the tort exception in their national immunity laws automatically violate
international law – a conclusion which no commentator so far has suggested. But if
states that enact this exception as law do not violate international law, why then
should a state do so if its courts apply this exception not on the basis of national
law, but on the basis of how they construe and interpret the doctrine of sovereign
immunity under international law?14 (Emphasis supplied)

What Finke suggests is that a local court need not find the tort exception concept in its
national law if it can interpret the doctrine from its understanding of international law.
Can the Philippines then interpret the exception as being part of its acceptance of
“general principles of international law” under the Constitution?15cralawlawlibrary

SOVEREIGN IMMUNITY AS A POLITICAL DECISION

In Vinuya v. Romulo, we stated that “the question whether the Philippine government
should espouse claims of its nationals against a foreign government is a foreign
relations matter, the authority for which is demonstrably committed by our Constitution
not to the courts but to the political branches.”16 Immunity then, unlike in other
jurisdictions, is determined not by the courts of law but by the executive branches.
Indeed, this was extensively discussed in Chief Justice Puno’s concurring opinion
in Liang v. People, to wit:chanRoblesvirtualLawlibrary

Petitioner's argument that a determination by the Department of Foreign Affairs that he

is entitled to diplomatic immunity is a political question binding on the courts, is
anchored on the ruling enunciated in the case of WHO, et al. vs. Aquino, et
al., viz:chanRoblesvirtualLawlibrary

“It is a recognized principle of international law and under our system of

separation of powers that diplomatic immunity is essentially a political question
and courts should refuse to look beyond a determination by the executive branch
of the government, and where the plea of diplomatic immunity is recognized and
affirmed by the executive branch of the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, the Solicitor General in this case, or other officer
acting under his direction. Hence, in adherence to the settled principle that courts
may not so exercise their jurisdiction by seizure and detention of property, as to
embarrass the executive arm of the government in conducting foreign relations, it
is accepted doctrine that in such cases the judicial department of the government
follows the action of the political branch and will not embarrass the latter by
assuming an antagonistic jurisdiction.”

This ruling was reiterated in the subsequent cases of International Catholic Migration
Commission vs. Calleja; The Holy See vs. Rosario, Jr; Lasco vs. UN; and DFA vs.
NLRC.

The case of WHO vs. Aquino involved the search and seizure of personal effects of
petitioner Leonce Verstuyft, an official of the WHO. Verstyft was certified to be entitled to
diplomatic immunity pursuant to the Host Agreement executed between the Philippines
and the WHO.

ICMC vs. Calleja concerned a petition for certification election filed against ICMC and
IRRI. As international organizations, ICMC and IRRI were declared to possess
diplomatic immunity. It was held that they are not subject to local jurisdictions. It was
ruled that the exercise of jurisdiction by the Department of Labor over the case would
defeat the very purpose of immunity, which is to shield the affairs of international
organizations from political pressure or control by the host country and to ensure the
unhampered performance of their functions.

In Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the
Holy See, as represented by the Papal Nuncio. The Court upheld the petitioner’s
defense of sovereign immunity. It ruled that where a diplomatic envoy is granted
immunity from the civil and administrative jurisdiction of the receiving state over any real
action relating to private immovable property situated in the territory of the receiving
state, which the envoy holds on behalf of the sending state for the purposes of the
mission, with all the more reason should immunity be recognized as regards the
sovereign itself, which in that case is the Holy See.

In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources
Exploration was sued before the NLRC for illegal dismissal. The Court again upheld the
doctrine of diplomatic immunity invoked by the Fund.

Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian
Development Bank. Pursuant to its Charter and the Headquarters Agreement, the
diplomatic immunity of the Asian Development Bank was recognized by the Court.

xxxx

Clearly, the most important immunity to an international official, in the discharge of his
international functions, is immunity from local jurisdiction. There is no argument in
doctrine or practice with the principle that an international official is independent of the
jurisdiction of the local authorities for his official acts. Those acts are not his, but are
imputed to the organization, and without waiver the local courts cannot hold him liable
for them. In strict law, it would seem that even the organization itself could have no right
to waive an official's immunity for his official acts. This permits local authorities to
assume jurisdiction over and individual for an act which is not, in the wider sense of the
term, his act at all. It is the organization itself, as a juristic person, which should waive its
own immunity and appear in court, not the individual, except insofar as he appears in
the name of the organization. Provisions for immunity from jurisdiction for official acts
appear, aside from the aforementioned treatises, in the constitution of most modern
international organizations. The acceptance of the principle is sufficiently widespread to
be regarded as declaratory of international law.17(Emphasis supplied)

In this view, the prudent interpretation of the tort exception would be to allow the
executive branch to first determine whether diplomatic or sovereign immunity can be
invoked by the foreign officials involved. If it can be invoked, then the next analysis
should be whether this invoked immunity is absolute, as in the treatment of diplomatic
envoys. If it is not absolute, then and only then can the Court weave the tort exception
into the law of sovereign immunity and thus attain jurisdiction over the Naval Officers
involved. This is important because the practice has been to afford the foreign entity
absolute immunity, but withdraw the same from its personnel when they commit private
acts.

SOVEREIGN IMMUNITY UNDER INTERNATIONAL LAW

The basic concept of state immunity is that no state may be subjected to the jurisdiction
of another state without its consent.18 According to Professor Ian Brownlie, it is “a
procedural bar (not a substantive defence) based on the status and functions of the
state or official in question.”19 Furthermore, its applicability depends on the law and
procedural rules of the forum state.20 In the recent judgment of the International Court of
Justice (ICJ) in the Jurisdictional Immunities of the State (Germany v. Italy: Greece
Intervening) case,21 the doctrine of sovereign immunity was applied in the following
context:chanRoblesvirtualLawlibrary

In 1995, successors in title of the victims of the Distomo massacre, committed by the
German armed forces in a Greek village in June 1944, brought proceedings for
compensation against Germany before the Greek courts. The Greek court ordered
Germany to pay compensation to the claimants. The appeal by Germany against that
judgment was dismissed by a decision of the Hellenic Supreme Court, which ordered
Germany to pay the costs of the appeal proceedings. The successful Greek claimants
under the first-instance and Supreme Court judgments applied to the Italian courts
for exequaturof those judgments, so as to be able to have them enforced in Italy. This
was allowed by the Florence Court of Appeal and confirmed by the Italian Court of
Cassation.

Germany raised the dispute before the ICJ, claiming these decisions constituted
violations of its jurisdictional immunity.

The ICJ analyzed the case from the vantage point of immunity, such that the
jurisdictional immunity of states refers primarily to an immunity from the trial process and
is thus preliminary in character, as stated in the following
manner:chanRoblesvirtualLawlibrary

At the outset, however, the Court must observe that the proposition that the availability
of immunity will be to some extent dependent upon the gravity of the unlawful act
presents a logical problem. Immunity from jurisdiction is an immunity not merely
from being subjected to an adverse judgment but from being subjected to the trial
process. It is, therefore, necessarily preliminary in nature. Consequently, a national
court is required to determine whether or not a foreign State is entitled to immunity as a
matter of international law before it can hear the merits of the case brought before it and
before the facts have been established. If immunity were to be dependent upon the
State actually having committed a serious violation of international human rights law or
the law of armed conflict, then it would become necessary for the national court to hold
an enquiry into the merits in order to determine whether it had jurisdiction. If, on the
other hand, the mere allegation that the State had committed such wrongful acts were to
be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect
be negated simply by skilful construction of the claim.22 (Emphasis supplied)

The ICJ continued dissecting national law in order to determine whether jurisdictional
immunity could be defeated by reason of serious violations of human rights law or the
law of armed conflict. In this, the ICJ clearly saw that there was no customary
international law norm that led to the defeat of immunity by reason of these violations,
including the tort exception, viz:chanRoblesvirtualLawlibrary

Apart from the decisions of the Italian courts which are the subject of the present
proceedings, there is almost no State practice which might be considered to support the
proposition that a State is deprived of its entitlement to immunity in such a case.
Although the Hellenic Supreme Court in the Distomo case adopted a form of that
proposition, the Special Supreme Court in Margellos repudiated that approach two years
later. As the Court has noted in paragraph 76 above, under Greek law it is the stance
adopted in Margellos which must be followed in later cases unless the Greek courts find
that there has been a change in customary international law since 2002, which they
have not done. As with the territorial tort principle, the Court considers that Greek
practice, taken as a whole, tends to deny that the proposition advanced by Italy
has become part of customary international law.
In addition, there is a substantial body of State practice from other countries
which demonstrates that customary international law does not treat a State’s
entitlement to immunity as dependent upon the gravity of the act of which it is
accused or the peremptory nature of the rule which it is alleged to have
violated.23 (Emphasis supplied)

As things stand in the international sphere, the immunity of the state (and by extension,
its agents, in the performance of their governmental functions jure imperii) must stand
against even serious violations of international law, including breaches of
international environmental law (which is an aspect of human rights law as well). The
ICJ concluded that

x x x[U]nder customary international law as it presently stands, a State is not deprived of

immunity by reason of the fact that it is accused of serious violations of international
human rights law or the international law of armed conflict. In reaching that conclusion,
the Court must emphasize that it is addressing only the immunity of the State itself from
the jurisdiction of the courts of other States; the question of whether, and if so to what
extent, immunity might apply in criminal proceedings against an official of the State is
not in issue in the present case.24chanrobleslaw

This does not mean that the act of the state is to be considered lawful. However, this
also does not mean that state immunity is waived in the context of an international
breach of even a jus cogens norm, as explained in this
manner:chanRoblesvirtualLawlibrary

The rules of State immunity are procedural in character and are confined to determining
whether or not the courts of one State may exercise jurisdiction in respect of another
State. They do not bear upon the question whether or not the conduct in respect of
which the proceedings are brought was lawful or unlawful. That is why the application of
the contemporary law of State immunity to proceedings concerning events which
occurred in 1943-1945 does not infringe the principle that law should not be applied
retrospectively to determine matters of legality and responsibility (as the Court has
explained in paragraph 58 above). For the same reason, recognizing the immunity of a
foreign State in accordance with customary international law does not amount to
recognizing as lawful a situation created by the breach of a jus cogens rule, or rendering
aid and assistance in maintaining that situation, and so cannot contravene the principle
in Article 41 of the International Law Commission’s Articles on State
Responsibility.25chanrobleslaw

CONCLUSION OF JURISDICTIONAL ARGUMENTS AND IMMUNITY

What the Court is left to work with is a process by which jurisdiction and immunity can
be determined by answering several questions, summated
thusly:chanRoblesvirtualLawlibrary

1. Is the act of the foreign national or entity an act jure imperii, such that it
can be considered an act of state entitled to immunity, or an act jure
gestionis, in which case it is to be considered a private act?
 2. In respect of the above question, has the executive branch, in the
exercise of its political power, determined whether absolute diplomatic
immunity is applicable?

3. If it is an act jure imperii and thus entitled to sovereign immunity, does an

exception apply to withdraw the immunity privilege of such acts?

In this case, it is apparent that the act of the U.S.S. Guardian and its officers in entering
Philippine waters is allowed by the VFA, and as a treaty privilege should be considered
an act jure imperii. Its deviation into the waters of Tubbataha, and whether this can be
considered a private act, is a factual issue that should be determined by the proper
body. Indeed, while Philippine authorities may not have authorized the deviation, if the
United States government affirms that it gave the Guardian sufficient discretion to
determine its course, then the act is not necessarily robbed of its jure imperii character
and is thus entitled to immunity. The course of action of the Philippine government
would be to engage in diplomatic negotiations for potential treaty breach liability.

As of this moment, the executive branch has not made a determination of the applicable
immunity. No correspondence has been sent to the Court as to the issue. Thus, the
Court must act in deference to the executive prerogative to first make this determination
under the presumption of regularity of performance of duties, before it can exercise its
judicial power.

Finally, no exception exists in Philippine or international law that would remove the
immunity of the United States in order to place it under the jurisdiction of Philippine
courts. The Writ of Kalikasan is a compulsory writ, and its issuance initiates a legal
process that would circumvent the internationally established rules of immunity. Should
the Court issue the Writ, it could possibly entail international responsibility for breaching
the jurisdictional immunity of a sovereign state.

I therefore vote to dismiss the Petition.

Endnotes:

1
G.R. No. 185572, February 07, 2012
2
G.R. No. 138570, October 10, 2000.
3
G.R. No. 151445, April 11, 2002.
4
G.R. No. 175888, February 11, 2009.
5
Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. 1330, 1332(a), 1391(f) and 1601-1611.
6
Id., sec. 1605(a)(1).
7
Id., sec. 1605(a)(2).
8
Id., sec. 1605(a)(3).
9
Id., sec. 1605(a)(4).
10
Id., sec. 1605(a)(5).
11
Id., sec. 1605(a)(6).
12
Id., sec. 1605(a)(7).
13
Id., sec. 1605(b).
14
JASPER FINKE, SOVEREIGN IMMUNITY: RULE, COMITY OR SOMETHING
ELSE?, Eur J Int Law (2010) 21(4), 863-864.
15
Article II, Sec. 2, 1987 CONSTITUTION.
16
G.R. No. 162230, April 28, 2010.
17
G.R. No. 125865, 26 March 2001.
18
J-MAURICE ARBOUR & GENEVIEVE PARENTS, DROIT INTERNATIONAL PUBLIC,
th
5 Ed., 331 (2006).
19
JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL
LAW, 8th Ed., 487 (2012).
20
Id. at 488.
21
JURISDICTIONAL IMMUNITIES OF THE STATE (Germany v. Italy), Judgment (Feb
3, 2012).
22
Id. at 82.
23
Id. at 83-84.

CONCURRING OPINION

LEONEN, J.:

Prefatory
I agree that the petition should be dismissed primarily because it is moot and academic.

The parties who brought this petition have no legal standing. They also invoke the
wrong remedy. In my view, it is time to clearly unpack the rudiments of our
extraordinary procedures in environmental cases in order to avoid their abuse. Abuse of
our procedures contributes to the debasement of the proper function of the remedies
and invites inordinate interference from this court from what may be technical and
political decisions that must be made in a different forum. Our sympathy for
environmental concerns never justifies our conversion to an environmental super body.

The writ of kalikasan is not an all-embracing legal remedy to be wielded like a political
tool. It is both an extraordinary and equitable remedy which assists to prevent
environmental catastrophes. It does not replace other legal remedies similarly
motivated by concern for the environment and the community’s ecological
welfare. Certainly, when the petition itself alleges that remedial and preventive
remedies have occurred, the functions of the writ cease to exist. In case of
disagreement, parties need to exhaust the political and administrative arena. Only when
a concrete cause of action arises out of facts that can be proven with substantial
evidence may the proper legal action be entertained.

Citizen’s suits are suits brought by parties suffering direct and substantial injuries;
although in the environmental field, these injuries may be shared with others. It is
different from class suits brought as representative suits under Oposa v. Factoran.1 In
my view, there is need to review this doctrine insofar as it allows a nonrepresentative
group to universally represent a whole population as well as an unborn generation
binding them to causes of actions, arguments, and reliefs which they did not
choose. Generations yet unborn suffer from the legal inability to assert against false or
unwanted representation.

Citizen’s suits are procedural devices that allow a genuine cause of action to be
judicially considered in spite of the social costs or negative externalities of such
initiatives. This should be clearly distinguished in our rules and in jurisprudence from
class suits that purport to represent the whole population and unborn generations. The
former is in keeping with the required constitutional protection for our people. The latter
is dangerous and should be used only in very extraordinary or rare situations. It may be
jurisprudentially inappropriate.

In my view, decisions relating to environmental concerns should be more balanced. It

must attend in a more sober way to the required balance of all interests. Hence, our rule
with respect to standing should require that parties bringing the suit are sufficiently and
substantially possessed of individual interest and capability so that they can properly
shape the issues brought before this court. The capability of the parties to bring suit can
readily be seen through the allegations made in their petition.

Our doctrine regarding sovereign immunity also needs to be refined in the proper case
with respect to its nature, source, and its limitations.

The doctrine of sovereign immunity evolves out of the theory and practice of sovereignty
and the principle par in parem non habet jurisdictionem. Its particular contours as an
international norm have evolved far beyond the form it took when the theory of absolute
sovereignty was current. Contemporarily, it is understood as a basic right extended to
states by other states on the basis of respect for sovereignty and
independence.2 There appears to be a consensus among states that sovereign
immunity as a concept is legally binding.3 However, there remains to be a lack of
international agreement as to how it is to be invoked and the extent of immunity in some
cases.4cralawlawlibrary

This vagueness arises from the debate on which among the sources of international law
the doctrine of sovereign immunity draws its binding authority and the content of the
doctrine given its source.

This doctrine of relative jurisdictional immunity (sovereign immunity) of states and their
agents becomes binding in our jurisdiction as international law only through Section 2 of
Article II or Section 21 of Article VII of the Constitution. Article XVII, Section 3 of the
Constitution is a limitation on suits against our state. It is not the textual anchor for
determining the extent of jurisdictional immunities that should be accorded to other
states or their agents. International law may have evolved further than the usual
distinction between acta jure imperii and acta jure gestionis. Indications of state practice
even of public respondents show that jurisdictional immunity for foreign states may not
apply to certain violations of jus cogens rules of international customary law. There can
be tort exemptions provided by statute and, therefore, the state practice of an agent’s
sovereign being sued in our courts.

International law does not also prohibit legislation that clarifies national policy and,
therefore, our own considerations of state practice in relation to the limits of jurisdictional
immunities for other sovereigns. Neither does international law prohibit domestic courts
from shaping exceptions to jurisdictional immunity based upon our reading of the
Constitution as well as international and municipal law.

I am of the view, therefore, that this case be dismissed principally for its procedural
infirmities. We should reserve doctrinal exposition and declaration of the content of
jurisdictional immunities for other sovereigns and their agents when the proper cases
merit our attention and not yet unduly limit such jurisprudence in relation to the law of
the sea, municipal torts, and violations of international customary law of a jus cogens
character. The results in this case would have been different if initiated with the proper
remedy, by the proper parties in the proper court.

I
Procedural antecedents

This court was asked to issue a writ of kalikasan with temporary environmental
protection order or TEPO pursuant to Rule 7 of A.M. No. 09-6-8-SC, otherwise known as
the Rules of Procedure for Environmental Cases. Petitioners seek an immediate order
from this court:chanRoblesvirtualLawlibrary

1) for respondents to cease and desist all operations over the Guardian grounding
incident;

2) for the demarcation of the metes and bounds of the damaged area, with an additional
buffer zone;
3) for respondents to stop all port calls and war games under the Balikatan;

4) for respondents to assume responsibility for prior and future environmental damage in
general and under the Visiting Forces Agreement (VFA);

5) for the temporary definition of allowable activities near or around the Tubbataha
Reefs [Natural] Park, but away from the damaged site and the additional buffer zone;

6) for respondent Secretary of Foreign Affairs to negotiate with the United States
representatives for an agreement on environmental guidelines and accountability
pursuant to the VFA;

7) for respondents and appropriate agencies to commence administrative, civil, and

criminal proceedings against erring officers and individuals;

8) for the declaration of exclusive criminal jurisdiction of Philippine authorities over erring
USS Guardian personnel;

9) for respondents to pay just and reasonable compensation in the settlement of all
meritorious claims for damages caused to the Tubbataha Reefs;

10) for respondents to cooperate in securing the attendance of witnesses and the
collection and production of evidence, including objects connected with the offenses
related to the grounding of the Guardian;

11) for respondents US officials and their representatives to place a deposit to the TRNP
Trust Fund, as defined in Section 17 of RA 10067, as a bona fide gesture towards full
reparations;

12) for respondents to undertake rehabilitation measures for areas affected by the
grounding of the Guardian;

13) for respondents to publish on a quarterly basis the environmental damage

assessment, valuation, and valuation methods, in all stages of negotiations to ensure
transparency and accountability;

14) for the convention of a multisectoral technical working group that will provide
scientific and technical support to the Tubbataha Protected Area Management Board
(TPAMB);

15) for respondents Department of Foreign Affairs, Department of National Defense, and
the Department of Environmental and Natural Resources to review the VFA and the
Mutual Defense Treaty in light of the right to a balanced and healthful ecology, and any
violation related thereto;

16) for the declaration of the grant of immunity under Articles V and VI of the VFA as
being violative of equal protection and/or the peremptory norm of nondiscrimination;

17) for permission to resort to continuing discovery measures; and

18) for other just and equitable environmental rehabilitation measures and
reliefs.5chanrobleslaw

Petitioners include representatives from people’s organizations, non-government

organizations, accredited public interest groups, environmental institutes, government
officials, and academicians.6 Respondents, on the other hand, are the American
commanding officers of the USS Guardian and the Balikatan 2013 Exercises, incumbent
Philippine government officials, and Philippine military officers involved, by virtue of their
office, in issues arising out of the grounding of the USS Guardian in Tubbataha Reefs
and its subsequent salvage.7cralawlawlibrary

The USS Guardian is a fifth Avenger Class Mine Countermeasures, United States Navy
ship.8 The three diplomatic notes issued by the Embassy of the United States of
America in the Philippines dated December 3, 2012,9 December 31, 2012,10 and
January 14, 201311 all sought clearance for the ship to “enter and exit the territorial
waters of the Philippines and to arrive at the port of Subic Bay for the purpose of routine
ship replenishment, maintenance, and crew liberty.”12cralawlawlibrary

Thus, on January 17, 2013, while en route to Makasaar, Indonesia, the USS
Guardian ran aground in the Tubbataha Reefs’ south atoll, approximately 80 miles east-
southeast of Palawan.13 In a statement issued on January 25, 2013, US Ambassador
to the Philippines Harry K. Thomas expressed his regret over the incident, recognizing
the legitimate concerns over the damage caused to the reef.14 On February 5, 2013, a
joint statement was issued by the Philippines and the United States where the latter
undertook to provide compensation.15 On the same day, a salvage plan was submitted
by a Singaporean company contracted by the US Navy to conduct the USS
Guardian salvage operations.16 The salvage operations were completed on March 30,
2013.17cralawlawlibrary

On April 17, 2013, petitioners filed the present petition for writ of kalikasan with prayer
for temporary environmental protection order (TEPO).

Acting on petitioners’ petition but without necessarily giving due course, this court on
May 8, 2013 issued a resolution. The resolution a) required respondents, except the
President of the Republic of the Philippines, to comment within ten (10) days from notice
of the resolution; and b) held in abeyance the issuance of a TEPO.18cralawlawlibrary

We note that on May 27, 2013, the Office of Legal Affairs of the Department of Foreign
Affairs sent a letter to this court, requesting that the notice of this court’s resolution dated
May 8, 2013 be returned, as it was not an agent for the service of processes upon
American respondents.19cralawlawlibrary

The pleadings presented the following issues: a) whether petitioners have legal standing
to file a petition for writ of kalikasan with prayer for temporary environmental protection
order (TEPO), and b) whether the doctrine of sovereign immunity applies to foreign
respondents.

Petitioners argued that they have locus standi.20 Having categorized the petition as a
citizen's suit, they alleged that they are representing “others, including minors and
generations yet unborn” in asserting their constitutional right to a balanced and healthful
ecology.21 Petitioners cited this court’s ruling in Oposa v. Factoran that Article II,
Section 16 of the 1987 Constitution was immediately enforceable. The pronouncement
was anchored on the premise that the right to a balanced and healthful ecology
belonged “to a different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation.”22cralawlawlibrary

Petitioners also alleged that the American respondents are not immune from
suit.23 Citing Nicolas v. Romulo,24 they argued that Article V of the Visiting Forces
Agreement or VFA, which pertained to “Criminal Jurisdiction,”25 establishes a waiver of
the US military officers involved in the incident's26 immunity from suit in light of their
violation of Republic Act 10067, or the Tubbataha Reefs Natural Park (TRNP) Act of
2009,27 including its entry in the area without proper permit.28 Also citing US cases New
York v. United States Army Corps of Engineers (E.D.N.Y. September 24,
2012) and Trudeau v. FTC (456 F.3d 178, D.C. Cir. 2006), petitioners further argued
that existing US federal statutes clearly provide that American government agencies
have statutorily waived their immunity from any equitable action involving environmental
damages.29 They referred to both Resource Conservation and Recovery Act of 1976
(RCRA) and the Federal Tort Claims Act (FTCA) as legal bases.30cralawlawlibrary

Petitioners stated that RCRA waives sovereign immunity in citizen’s suits when a) there
is a need to enforce a permit, standard, or regulation; b) there is a need to abate an
imminent and substantial danger to health or the environment; or c) the United States
Environmental Protection Agency is required to perform a nondiscretionary
duty.31cralawlawlibrary

On the other hand, the FTCA provides that “the U.S. Government is liable in tort in the
same manner and to the same extent as private individuals under like circumstances
[but only] if the laws of the state in which the wrongful act occurred provide recovery in
similar situations involving private parties.”32cralawlawlibrary

Petitioners also argued that the USS Guardian is liable in rem33 to the Philippines for
response costs and damages resulting from the destruction, loss, and injury caused to
the Tubbataha Reefs.34 Aside from not having had prior permit to enter the area,
petitioners pointed out that the American respondents had committed gross and
inexcusable negligence when it failed to utilize its technical expertise and equipment in
preventing the incident.35 It is their position that this necessarily rendered sovereign
immunity inapplicable to American respondents, even if they were acting within the
scope of their authority, office, or employment.36cralawlawlibrary

II
The parties do not have legal standing

Petitioners brought this case as a citizen’s suit under the Tubbataha Reefs Natural Park
Act of 2009, in conjunction with the Rules of Procedure for Environmental
Cases.37cralawlawlibrary

Section 37 of the Tubbataha Reefs Natural Park Act of 2009 allows any citizen to file a
civil, criminal, or administrative case against:chanRoblesvirtualLawlibrary

(a) Any person who violates or fails to comply with the provisions of this Act its
implementing rules and regulations; or
(b) Those mandated to implement and enforce the provisions of this Act with respect to
orders, rules and regulations issued inconsistent with this Act; and/or

(c) Any public officer who wilfully or grossly neglects the performance of an act,
specifically enjoined as a duty by this Act or its implementing rules and regulations; or
abuses his authority in the performance of his duty; or, in any manner improperly
performs his duties under this act or its implementing rules and regulations: Provided,
however, That, no suit can be filed until after a thirty (30)-day notice has been given to
the public officer and the alleged violator concerned and no appropriate action has been
taken thereon. The court shall exempt such action from the payment of filing fees, upon
prima facie showing of the non-enforcement or violations complained of and exempt the
plaintiff from the filing of an injunction bond for the issuance of preliminary injunction. In
the event that the citizen should prevail, the court shall award reasonable attorney's
fees, moral damages and litigation costs as appropriate.

While the Tubbataha Reefs Natural Park Act enumerates causes of action available
against duty-bearers, it does not specifically describe the parties who may file a case.

The “environmental” nature of this petition, based upon the alleged violation of the
Tubbataha Reefs Natural Park Act, by itself does not and should not automatically
render the Rules of Procedure for Environmental Cases applicable. At best, it must be
reconciled with rules on parties as contained in the Rules of Court. This is to preclude a
situation where the interpretation of the Rules of Procedure for Environmental Cases
results in a ruling inconsistent or contrary to established legal concepts. It is my position
that unless the remedy sought will serve the purpose of preventing an environmental
catastrophe, the traditional procedural route should be taken. This means that even in
environmental cases, Rule 3, Section 2, 3, or 12 of the 1997 Rules of Civil Procedure
should still also apply.

Real party in interest

Rule 3, Section 2 pertains to real party in interest:

SEC. 2. Parties in interest.— A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of the
suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest. (2a)38chanrobleslaw

A real party in interest is a litigant whose right or interest stands to benefit or get injured
by the judgment of the case.39 The interest referred to must be material interest,
founded upon a legal right sought to be enforced.40 They bring a suit because the act
or omission of another has caused them to directly suffer its consequences.41 Simply
put, a real party in interest has a cause of action based upon an existing legal right-duty
correlative.

Representatives as parties
Section 3 of Rule 3, on the other hand, discusses parties acting in representation of the
real party in interest:chanRoblesvirtualLawlibrary

SEC. 3. Representatives as parties. — Where the action is allowed to be prosecuted

or defended by a representative or someone acting in a fiduciary capacity, the
beneficiary shall be included in the title of the case and shall be deemed to be the real
party in interest. A representative may be a trustee of an express trust, a guardian, an
executor or administrator, or a party authorized by law or these Rules. An agent acting
in his own name and for the benefit of an undisclosed principal may sue or be sued
without joining the principal except when the contract involves things belonging to the
principal.(3a)42

A “representative” is not the party who will actually benefit or suffer from the judgment of
the case. The rule requires that the beneficiary be identified as he or she is deemed the
real party in interest.43 This means that acting in a representative capacity does not
turn into a real party in interest someone who is otherwise an outsider to the cause of
action.

This rule enumerates who may act as representatives, including those acting in a
fiduciary capacity. While not an exhaustive list, it does set a limit by allowing only those
who are “authorized by law or these Rules.”44 In environmental cases, this section may
be used to bring a suit, provided that two elements concur: a) the suit is brought on
behalf of an identified party whose right has been violated, resulting in some form of
damage, and b) the representative authorized by law or the Rules of Court to represent
the victim.

The citizen’s suit under the Rules of Procedure for Environmental Cases is a
representative suit. A citizen’s suit is defined:chanRoblesvirtualLawlibrary

SEC. 5. Citizen suit. – Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under
environmental laws. Upon the filing of a citizen suit, the court shall issue an order which
shall contain a brief description of the cause of action and the reliefs prayed for,
requiring all interested parties to manifest their interest to intervene in the case within
fifteen (15) days from notice thereof. The plaintiff may publish the order once in a
newspaper of a general circulation in the Philippines or furnish all affected barangays
copies of said order.

In my view, this rule needs to be reviewed. A citizen’s suit that seeks to enforce
environmental rights and obligations may be brought by any Filipino who is acting as a
representative of others, including minors or generations yet unborn.45 As
representatives, it is not necessary for petitioners to establish that they directly suffered
from the grounding of the USS Guardian and the subsequent salvage
operations. However, it is imperative for them to indicate with certainty the injured
parties on whose behalf they bring the suit. Furthermore, the interest of those they
represent must be based upon concrete legal rights. It is not sufficient to draw out a
perceived interest from a general, nebulous idea of a potential “injury.”

This is particularly important when the parties sought to be represented are “minors and
generations yet unborn.”
“Minors and generations yet unborn” is a category of real party in interest that was first
established in Oposa v. Factoran. In Oposa v. Factoran, this court ruled that the
representatives derived their personality to file a suit on behalf of succeeding
generations from "intergenerational responsibility."46 The case mirrored through
jurisprudence the general moral duty of the present generation to ensure the full
enjoyment of a balanced and healthful ecology by the succeeding
generations.47cralawlawlibrary

Since environmental cases necessarily involve the balancing of different types and
degrees of interests, allowing anyone from the present generation to represent others
who are yet unborn poses three possible dangers.

First, they run the risk of foreclosing arguments of others who are unable to take part in
the suit, putting into question its representativeness. Second, varying interests may
potentially result in arguments that are bordering on political issues, the resolutions of
which do not fall upon this court. Third, automatically allowing a class or citizen's suit on
behalf of "minors and generations yet unborn" may result in the oversimplification of
what may be a complex issue, especially in light of the impossibility of determining future
generation’s true interests on the matter.

Decisions of this court will bind future generations. The unbridled and misguided use of
this remedy by supposed representatives may not only weaken the minors’ and unborn’s
ability to decide for themselves but may have unforeseen and unintended detrimental
effects on their interests.

The last point is especially crucial in light of res judicata. A long-established doctrine on
litigation, res judicata:chanRoblesvirtualLawlibrary

. . . is an old axiom of law, dictated by wisdom and sanctified by age, and founded on
the broad principle that it is to the interest of the public that there should be an end
to litigation by the same parties over a subject once fully and fairly adjudicated. It
has been appropriately said that the doctrine is a rule pervading every well-regulated
system of jurisprudence, and is put upon two grounds embodied in various maxims
of the common law: one, public policy and necessity, which makes it to the
interest of the State that there should be an end to litigation – interest reipublicae
ut sit finis litium; the other, the hardship on the individual that he should be vexed
twice for one and the same cause – nemo debet bis vexari pro una et eadem
causa. A contrary doctrine would subject the public peace and quiet to the will and
neglect of individuals and prefer the gratification of the litigious disposition on the part of
suitors to the preservation of the public tranquillity and happiness.48 (Emphasis supplied,
citation omitted)

The elements of res judicata are:chanRoblesvirtualLawlibrary

. . . (1) the former judgment must be final; (2) the former judgment must have been
rendered by a court having jurisdiction of the subject matter and the parties; (3)
the former judgment must be a judgment on the merits; and (4) there must
be between the first and subsequent actions (i) identity of parties or at least such
as representing the same interest in both actions; (ii) identity of subject matter, or of
the rights asserted and relief prayed for, the relief being founded on the same facts; and,
(iii) identity of causes of action in both actions such that any judgment that may be
rendered in the other action will, regardless of which party is successful, amount to res
judicata in the action under consideration.49 (Emphasis supplied, citation omitted)

An absolute identity of the parties is not required for res judicata to apply, for as long as
there exists an identity or community of interest.50cralawlawlibrary

Res judicata renders conclusive between the parties and their privies a ruling on their
rights, not just for the present action, but in all subsequent suits. This pertains to all
points and matters judicially tried by a competent court. The doctrine bars parties to
litigate an issue more than once, and this is strictly applied because “the maintenance of
public order, the repose of society . . . require that what has been definitely determined
by competent tribunals shall be accepted as irrefragable legal truth.”51cralawlawlibrary

Considering the effect of res judicata, the ruling in Oposa v. Factoran has opened a
dangerous practice of binding parties who are yet incapable of making choices for
themselves, either due to minority or the sheer fact that they do not yet exist. Once res
judicata sets in, the impleaded minors and generations yet unborn will be unable to bring
a suit to relitigate their interest.

Perhaps it is time to revisit the ruling in Oposa v. Factoran.

That case was significant in that, at that time, there was need to call attention to
environmental concerns in light of emerging international legal principles. While
“intergenerational responsibility” is a noble principle, it should not be used to obtain
judgments that would preclude future generations from making their own assessment
based on their actual concerns. The present generation must restrain itself from
assuming that it can speak best for those who will exist at a different time, under a
different set of circumstances. In essence, the unbridled resort to representative suit will
inevitably result in preventing future generations from protecting their own rights and
pursuing their own interests and decisions. It reduces the autonomy of our children and
our children’s children. Even before they are born, we again restricted their ability to
make their own arguments.

It is my opinion that, at best, the use of the Oposa doctrine in environmental cases
should be allowed only when a) there is a clear legal basis for the representative suit; b)
there are actual concerns based squarely upon an existing legal right; c) there is no
possibility of any countervailing interests existing within the population represented or
those that are yet to be born; and d) there is an absolute necessity for such standing
because there is a threat of catastrophe so imminent that an immediate protective
measure is necessary. Better still, in the light of its costs and risks, we abandon the
precedent all together.

Class suit

The same concern regarding res judicata also applies to a class suit.

Rule 3, Section 12 of the Rules of Court states:chanRoblesvirtualLawlibrary

SEC. 12. Class suit. — When the subject matter of the controversy is one of common
or general interest to many persons so numerous that it is impracticable to join all as
parties, a number of them which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the right to intervene to protect his
individual interest. (12a)

In Mathay et al. v. The Consolidated Bank and Trust Company,52 this court held that a
class suit must essentially contain the following elements:chanRoblesvirtualLawlibrary

The necessary elements for the maintenance of a class suit are accordingly (1) that
the subject matter of the controversy be one of common or general interest to
many persons, and (2) that such persons be so numerous as to make it
impracticable to bring them all to the court. An action does not become a class suit
merely because it is designated as such in the pleadings. Whether the suit is or is not
a class suit depends upon the attending facts, and the complaint, or other pleading
initiating the class action should allege the existence of the necessary facts, to wit, the
existence of a subject matter of common interest, and the existence of a class and
the number of persons in the alleged class, in order that the court might be
enabled to determine whether the members of the class are so numerous as to
make it impracticable to bring them all before the court, to contrast the number
appearing on the record with the number in the class and to determine whether
claimants on record adequately represent the class and the subject matter of
general or common interest.

The complaint in the instant case explicitly declared that the plaintiffs-appellants
instituted the "present class suit under Section 12, Rule 3, of the Rules of Court in behalf
of CMI subscribing stockholders" but did not state the number of said CMI subscribing
stockholders so that the trial court could not infer, much less make sure as explicitly
required by the statutory provision, that the parties actually before it were sufficiently
numerous and representative in order that all interests concerned might be fully
protected, and that it was impracticable to bring such a large number of parties before
the court.

The statute also requires, as a prerequisite to a class suit, that the subject-matter of the
controversy be of common or general interest to numerous persons. Although it has
been remarked that the "innocent 'common or general interest' requirement is not
very helpful in determining whether or not the suit is proper," the decided cases
in our jurisdiction have more incisively certified the matter when there is such
common or general interest in the subject matter of the controversy. By the
phrase "subject matter of the action" is meant "the physical facts, the things real
or personal, the money, lands, chattels, and the like, in relation to which the suit is
prosecuted, and not the delict or wrong committed by the defendant."53 (Emphasis
supplied, citations omitted)

The same case referred to the United States Federal Rules of Civil Procedure. After
having been raised by Mathay et al. as legal basis for its class suit, this court
held:chanRoblesvirtualLawlibrary
. . . We have no conflict with the authorities cited; those were rulings under the Federal
Rules of Civil Procedure, pursuant to Rule 23 of which, there were three types of
class suits, namely: the true, the hybrid, and the spurious, and these three had
only one feature in common, that is, in each the persons constituting the class
must be so numerous as to make it impracticable to bring them all before the
court. The authorities cited by plaintiffs-appellants refer to the spurious class action
Rule 23 (a) (3) which involves a right sought to be enforced, which is several, and there
is a common question of law or fact affecting the several rights and a common relief is
sought. The spurious class action is merely a permissive joinder device; between the
members of the class there is no jural relationship, and the right or liability of each is
distinct, the class being formed solely by the presence of a common question of law or
fact. This permissive joinder is provided in Section 6 of Rule 3, of our Rules of Court.
Such joinder is not and cannot be regarded as a class suit, which this action purported
and was intended to be as per averment of the complaint.

It may be granted that the claims of all the appellants involved the same question
of law. But this alone, as said above, did not constitute the common interest over
the subject matter indispensable in a class suit. . . .54 (Emphasis supplied, citations
omitted)

In a class suit, petitioners necessarily bring the suit in two capacities: first, as persons
directly injured by the act or omission complained of; and second, as representatives of
an entire class who have suffered the same injury. In order to fully protect all those
concerned, petitioners must show that they belong in the same universe as those they
seek to represent. More importantly, they must establish that, in that universe, they can
intervene on behalf of the rest.

These requirements equally apply in environmental cases.

Petitioners who bring the suit both for themselves and those they seek to represent must
share a common legal interest — that is, the subject of the suit over which there exists a
cause of action is common to all persons who belong to the group.55 As a result, the
right sought to be enforced is enjoyed collectively, and not separately or
individually.56 The substantial injury must have been suffered by both the parties
bringing the suit and the represented class.

However, it is recognized that any damage to the environment affects people differently,
rendering it impossible for the injury suffered to be of the same nature and degree for
each and every person. For instance, second-hand smoke from one who lights up a
cigarette may cause lung and other health complications of a much graver degree to
exposed commuters, compared to those who are kept insulated by well-maintained and
well-ventilated buildings. The same may be said for dumpsites along the shores of a
bay. The gravity of injury they cause to those whose source of livelihood is purely
fishing in the affected area would be entirely different from that suffered by an office
worker.

The differences in effects, ranging from miniscule to grave, increase the possibility of
“free-riders” in a case. This results in a negative externality: an environmental
management concept that delves into the effect of an individual’s or firm’s action on
others.57 In this case, the effect on others is a disadvantage or an injury.
In most instances where this free-rider or negative externality exists, a suit is not filed
because the cost of maintaining and litigating outweighs the actual damage suffered due
to the act or omission of another. The theory is that bringing a class suit allows those
who are not as affected as petitioners, though they may share the same interest, to latch
their claim on someone else without any personal expense. There must be some
assurances, however, that the interests are the same and the arguments that should
have been brought by others who do not have the resources to bring the suit are
properly represented. This is why the rules allow courts to be liberal in assessing
“common interest.”

Another essential element of a class suit is that petitioners must be sufficiently

numerous and representative so as to fully protect the interest of all concerned. One of
the dangers of bringing a class suit is that while the parties’ environmental interest
shares a common legal basis, the extent and nature of that interest differ depending on
circumstances.

In the case of Re: Request of the Plaintiffs, Heirs of the Passengers of the Doña
Paz,58which quoted Moore’s Federal Practice we noted:chanRoblesvirtualLawlibrary

A "true class action" — distinguished from the so-called hybrid and the spurious
class action in U.S. Federal Practice — “involves principles of compulsory joinder,
since . . . (were it not) for the numerosity of the class members all should . . . (be) before
the court. Included within the true class suit . . . (are) the shareholders' derivative suit
and a class action by or against an unincorporated association. . . . A judgment in a
class suit, whether favorable or unfavorable to the class, is binding under res
judicata principles upon all the members of the class, whether or not they were
before the court. It is the non-divisible nature of the right sued on which
determines both the membership of the class and the res judicata effect of the
final determination of the right.”59(Emphasis supplied)

Those who bring class suits do so, carrying a heavy burden of representation. All the
parties represented may not have consented to the agency imposed on them.

Courts, therefore, must ensure that the parties that bring the suit are sufficiently
numerous to ensure that all possible interests and arguments have been
considered. The community, class, group, or identity that is represented must be
sufficiently defined so that the court will be able to properly assess that the parties
bringing the suit are properly representative.

In view of the technical nature of some environmental cases, not only should the parties
be representative in terms of the interests and arguments that they bring, they must
likewise show that they have the capability to bring reasonably cogent, rational,
scientific, well-founded arguments. This is so because if they purportedly represent a
community, class, group, or identity, we should assume that all those represented would
have wanted to argue in the best possible manner.

The cogency and representativeness of the arguments can readily be seen in the
initiatory pleading. In the special civil actions invoked in this case, this court has the
discretion to scrutinize the initiatory pleading to determine whether it should grant due
course prior or after the filing of a comment. In my view, this pleading falls short of the
requirement of representativeness.

For instance, it is clear in some of the reliefs that were requested that the arguments
may not be what all those they purport to represent really want. As an illustration, the
petition requests:chanRoblesvirtualLawlibrary

3) for respondents to stop all port calls and war games under the Balikatan;

The facts in this case and the writ of kalikasan certainly have no bearing on why this
court should issue an injunction against all port calls in any part of the country made by
all kinds of ships even if this is related to the Balikatan exercises. “War games” even
undertaken solely on land has no bearing on the subject matter of this case. Also, in the
facts as alleged in the pleading, it is not clear how all those affected by the ecological
mishap that may have occurred in the Tubbataha Reefs would also be interested in
stopping “war games under the Balikatan.” The pleading asserts that it represents all
generations yet unborn. Thus, it includes the sons and daughters of all government
officials who are now involved in the Balikatan exercises. It also includes the military
commanders who are now administering such exercise. The broad relief requested
belies the representativeness of the suit.

Of similar nature are the following prayers for relief in the

petition:chanRoblesvirtualLawlibrary

4) for respondents to assume responsibility for prior and future environmental damage in
general and under the Visiting Forces Agreement (VFA);

5) for the temporary definition of allowable activities near or around the Tubbataha
Reefs [Natural] Park, but away from the damaged site and the additional buffer zone;

6) for respondent Secretary of Foreign Affairs to negotiate with the United States
representatives for an agreement on environmental guidelines and accountability
pursuant to the VFA;

....

8) for the declaration of exclusive criminal jurisdiction of Philippine authorities over erring
USS Guardian personnel;

....

14) for the convention of a multisectoral technical working group that will provide
scientific and technical support to the Tubbataha Protected Area Management Board
(TPAMBl);

15) for respondents Department of Foreign Affairs, Department of National Defense, and
the Department of Environmental and Natural Resources to review the VFA and the
Mutual Defense Treaty in light of the right to a balanced and healthful ecology, and any
violation related thereto;
16) for the declaration of the grant of immunity under Articles V and VI of the VFA as
being violative of equal protection and/or the peremptory norm of nondiscrimination;

17) for permission to resort to continuing discovery measures

Not all environmental cases need to be brought as class suits. There is no procedural
requirement that majority of those affected must file a suit in order that an injunctive writ
or a writ of kalikasan can be issued. It is sufficient that the party has suffered its own
direct and substantial interest, its legal basis is cogent, and it has the capability to move
forward to present the facts and, if necessary, the scientific basis for its analysis for
some of these cases to be given due course.

Parenthetically, the humility of bringing suits only in the name of petitioners will protect
them from the charge that more than the legal arguments they want to bring, they also
want to impose their own political views as views which are universally accepted.

In all environmental cases, it is also not necessary that generations yet unborn be
represented. It is not also necessary that minors bring the suit. In my view, pleading
their interests have no value added to the case except for its emotive effect at the risk of
encouraging a paternal attitude toward our children and for those belonging to
generations yet unborn. Certainly, it was not necessary with respect to the putative
cause of action relating to the grounding of the USS Guardian.

With the class suit improperly brought, the parties who filed this petition have no legal
standing. To protect the individuals, families, and communities who are improperly
represented, this case should be dismissed.

III
A petition for a writ of kalikasan
is a wrong remedy

Rule 7, Part III of the Rules of Procedure for Environmental Cases pertaines to the writ
of kalikasan. It describes the nature of the writ:chanRoblesvirtualLawlibrary

Section 1. Nature of the writ. - The writ is a remedy available to a natural or juridical
person, entity authorized by law, people’s organization, non-governmental organization,
or any public interest group accredited by or registered with any government
agency, on behalf of persons whose constitutional right to a balanced and
healthful ecology is violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual or entity, involving
environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces. (Emphasis supplied)

The writ of kalikasan is a remedy that covers environmental damages the magnitude of
which transcends both political and territorial boundaries.60 It specifically provides that
the prejudice to life, health, or property caused by an unlawful act or omission of a public
official, public employee, or a private individual or entity must be felt in at least two cities
or provinces.61 The petition for its issuance may be filed on behalf of those whose right
to a balanced and healthful ecology is violated, provided that the group or organization
which seeks to represent is duly accredited.62cralawlawlibrary
Two things must be examined: first, whether petitioners are qualified to bring this suit
under the requirements of the provisions; and second, whether there are actual injured
parties being represented. On the first issue, the following petitioners bring this case as
individuals:

 Rev. Pedro Agiro, Vicar Apostolic of Puerto Princesa63

 Rev. Deogracias Iniguez, Jr., Bishop-Emeritus of Caloocan64
 Frances Quimpo65
 Teresita R. Perez, Ph.D66
 Giovanni Tapang, Ph.D67
 Jose Enrique Africa68
 Nestor Baguinon69
 A. Edsel Tupaz70

The following petitioners represent organizations:chanRoblesvirtualLawlibrary

 Clemente Bautista Jr., Coordinator of Kalikasan People's Network for the

Environment71
 Maria Carolina Araullo, Chairperson of Bagong Alyansang Makabayan
(Bayan)72
 Renato Reyes Jr., Secretary-General of Bagong Alyansang Makabayan
(Bayan)73
 Hon. Neri Javier Colmenares, Representative of Bayan Muna Party-list74
 Roland Simbulan, Ph.D., Junk VFA Movement75
 Hon. Raymond Palatino, Representative of Kabataan Party-list76
 Peter Gonzales, Vice Chairperson of Pambansang Lakas ng Kilusang
Mamamalakaya ng Pilipinas (Pamalakaya)77
 Elmer Labog, Chairperson of Kilusang Mayo Uno78
 Joan May Salvador, Secretary-General of Gabriela79
 Theresa Concepcion, Earth Island Institute80
 Mary Joan Guan, Executive Director for Center for Women's Resources81

Petitioners satisfy the first requirement as they comprise both natural persons and
groups duly recognized by the government. It is doubtful, however, whether there are
actual injured parties being represented. As discussed previously, a citizen's suit on an
environmental issue must be resorted to responsibly.

Petitioners in this case also seek the issuance of a temporary environmental protection
order or TEPO. Rule 7, Part III of the Rules of Procedure for Environmental Cases
provides:chanRoblesvirtualLawlibrary

SEC. 8. Issuance of Temporary Environmental Protection Order (TEPO). – If it appears

from the verified complaint with a prayer for the issuance of an Environmental Protection
Order (EPO) that the matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury, the executive judge of the multiple-sala court
before raffle or the presiding judge of a single-sala court as the case may be, may
issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt
of the TEPO by the party or person enjoined. Within said period, the court where the
case is assigned, shall conduct a summary hearing to determine whether the TEPO may
be extended until the termination of the case.

The court where the case is assigned, shall periodically monitor the existence of acts
that are the subject matter of the TEPO even if issued by the executive judge, and may
lift the same at any time as circumstances may warrant.

The applicant shall be exempted from the posting of a bond for the issuance of a TEPO.
(Emphasis supplied)

A TEPO is an order which either directs or enjoins a person or government agency to

perform or refrain from a certain act, for the purpose of protecting, preserving, and/or
rehabilitating the environment.82 The crucial elements in its issuance are the presence
of "extreme urgency" and "grave injustice and irreparable injury" to the
applicant.83cralawlawlibrary

Petitioners hinge the basis for this prayer on the salvage operations conducted
immediately after the incident. The remedy is no longer available considering that all
activities to remove the grounded USS Guardian have been concluded.84 Furthermore,
the Notice to Mariners No. 011-2013 issued by the Philippine Coast Guard on January
29, 2013 effectively set the metes and bounds of the damaged area.85 This notice also
prohibited "leisure trips to Tubbataha" and advised "all watercrafts transitting the vicinity
to take precautionary measures."86cralawlawlibrary

In light of the facts of this case, I vote that the petition be also dismissed for being moot
and being brought through the wrong remedy.

IV
Doctrine of relative jurisdictional immunity
(sovereign immunity)

It is my position that doctrine on relative jurisdictional immunity of foreign states or

otherwise referred to as sovereign immunity should be further refined. I am of the view
that immunity does not necessarily apply to all the foreign respondents should
the case have been brought in a timely manner, with the proper remedy, and in the
proper court. Those who have directly and actually committed culpable acts or
acts resulting from gross negligence resulting in the grounding of a foreign
warship in violation of our laws defining a tortious act or one that protects the
environment which implement binding international obligations cannot claim
sovereign immunity.

Some clarification may be necessary to map the contours of relative jurisdictional

immunity of foreign states otherwise known as the doctrine of sovereign immunity.

The doctrine of sovereign immunity can be understood either as a domestic or an

international concept.87cralawlawlibrary

As a domestic concept, sovereign immunity is understood as the non-suability of the

state. In the case of the Republic of the Philippines as a State, this is contained in
Article XVI, Section 3 of the 1987 Philippine Constitution, which provides that "[the] State
may not be sued without its consent."

In Air Transportation Office v. Spouses Ramos,88 this court underscored the practical
considerations underlying the doctrine:chanRoblesvirtualLawlibrary

Practical considerations dictate the establishment of an immunity from suit in

favor of the State. Otherwise, and the State is suable at the instance of every other
individual, government service may be severely obstructed and public safety
endangered because of the number of suits that the State has to defend against . .
. .89 (Emphasis supplied, citation omitted)

The textual reference to “[the] State” in Article XVI, Section 3 of the Constitution does
not refer to foreign governments. Rather, as a doctrine in international law, the concept
of sovereign immunity is incorporated into our jurisdiction as international custom or
general principle of international law through Article II, Section 2, which
provides:chanRoblesvirtualLawlibrary

Section 2. The Philippine renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations.90chanrobleslaw

Alternatively, should there be an international agreement or a treaty91 that articulates the

scope of jurisdictional immunity for other sovereigns, then it can be incorporated through
Article VII, Section 21, which provides:chanRoblesvirtualLawlibrary

No treaty or international agreement shall be valid and effective unless concurred in by

at least two-thirds of all the Members of the Senate.

In Republic of Indonesia v. Vinzon,92 this court ruled that “[the] rule that a State may not
be sued without its consent is a necessary consequence of the principles of
independence and equality of States.”93 However, it did not make any reference to
Article XVI, Section 3 of the Constitution. Instead, it used Article II, Section 294 as basis
for its discussion:chanRoblesvirtualLawlibrary

International law is founded largely upon the principles of reciprocity, comity,

independence, and equality of States which were adopted as part of the law of our
land under Article II, Section 2 of the 1987 Constitution. The rule that a State may
not be sued without its consent is a necessary consequence of the principles of
independence and equality of States. As enunciated in Sanders v. Veridiano II, the
practical justification for the doctrine of sovereign immunity is that there can be no legal
right against the authority that makes the law on which the right depends. In the case of
foreign States, the rule is derived from the principle of the sovereign equality of
States, as expressed in the maxim par in parem non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A contrary attitude
would "unduly vex the peace of nations.”95 (Emphasis supplied, citations omitted)

V
Sovereign immunity under international law
Under international law, sovereign immunity remains to be an abstract concept. On a
basic level, it is understood as a basic right extended to states by other states on the
basis of respect for sovereignty and independence.96 There appears to be a consensus
among states that sovereign immunity as a concept is legally binding.97 Nevertheless,
legal scholars observe that there remains to be a lack of agreement as to how it is to be
invoked or exercised in actual cases.98 Finke presents:chanRoblesvirtualLawlibrary

States accept sovereign immunity as a legally binding concept, but only on a very
abstract level. They agree on the general idea of immunity, but disagree on the
extent to which they actually must grant immunity in a specific case.99 (Emphasis
supplied, citations omitted)

This vagueness arises from the debate about the sources of international law for the
doctrine of sovereign immunity.

Article 38(1) of the Statute of the International Court of Justice (ICJ

Statute)100enumerates the classic sources of international law:101cralawlawlibrary

The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular,

establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice

accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the

teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.

International conventions, or treaties, are “international agreement[s] concluded

between States in written form and governed by international law, whether embodied in
a single instrument, or in two or more related instruments and whatever its particular
designation.”102 International custom, or customary international law, pertains to
principles, not necessarily expressed in treaties, resulting from practices consistently
followed by states due to a sense of legal obligation.103 General principles of law
recognized by civilized nations are "(those) principles of law, private and public, which
contemplation of the legal experience of civilized nations leads one to regard as obvious
maxims of jurisprudence of a general and fundamental character."104cralawlawlibrary

Sovereign immunity under treaty law

Attempts have been made to establish sovereign immunity under treaty law.105 On a
multilateral level, two treaties on this issue have been codified: a) the European
Convention on State Immunity (ECSI), and b) the UN Convention on Jurisdictional
Immunities of States (UNCJIS).

The European Convention on State Immunity is a treaty established through the Council
of Europe on May 16, 1972.106 In the Council of Europe's explanatory report, sovereign
immunity is defined as "a concept of international law, which has developed out of the
principle par in parem non habet imperium, by virtue of which one State is not subject to
the jurisdiction of another State."107 The treaty arose out of the need to address cases
where states become involved in areas of private law:chanRoblesvirtualLawlibrary

For many years State immunity has occupied the attention of eminent jurists. It is also
the object of abundant case law. The development of international relations and the
increasing intervention of States in spheres belonging to private law have posed
the problem still more acutely by increasing the number of disputes opposing
individuals and foreign States.

There are, at present, two theories, that of absolute State immunitywhich is the
logical consequence of the principle stated above and that of relative State immunity
which is tending to predominate on account of the requirement of modern
conditions. According to this latter theory, the State enjoys immunity for acts jure
imperii but not for acts jure gestionis, that is to say when it acts in the same way
as a private person in relations governed by private law. This divergence of opinion
causes difficulties in international relations. States whose courts and administrative
authorities apply the theory of absolute State immunity are led to call for the same
treatment abroad. (Emphasis supplied)

However, the European Convention on Sovereign Immunity's application is limited to the

signatories of the treaty:chanRoblesvirtualLawlibrary

The Convention requires each Contracting State to give effect to judgments rendered
against it by the courts of another Contracting State. It is in particular for this reason
that it operates only between the Contracting States on the basis of the special
confidence subsisting among the Members of the Council of Europe. The
Convention confers no rights on nonContracting States; in particular, it leaves open
all questions as to the exercise of jurisdiction against non-Contracting States in
Contracting States, and vice versa.

On the other hand, the UN Convention on Jurisdictional Immunities of States108 is a

treaty adopted by the UN General Assembly in December 2004. It was opened for
signature on January 27, 2005, but is yet to be in force109 for lacking the requisite
number of member-state signatories.110 At present, it only has 28 signatories, 16 of
which have either ratified, accepted, approved, or acceded to the
treaty.111cralawlawlibrary

UNCJIS refers to jurisdictional immunities of states as a principle of customary

international law.112 Scholars, however, point out that this posture is not
accurate. According to Nagan and Root:113cralawlawlibrary

It may be true that all states recognize jurisdictional immunity, but as we have
already alluded to, that is so only at an abstract level; there is “substantial
disagreement on detail and substance.”114 (Emphasis supplied, citations omitted)
Wiesinger adds:chanRoblesvirtualLawlibrary

The UN Convention is not a codification of customary international law

concerning enforcement measures either, since it introduces new categories of
State property, which are immune from execution. Moreover, it contains a
connection requirement of property serving commercial purposes with the entity against
which the claim was directed, which is a novelty in international law.115 (Emphasis
supplied)

The Philippines has neither signed nor ratified the UNCJIS. Article VII, Section 21 of the
Constitution clearly provides the legal requisites to a valid and enforceable international
treaty: "No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate."

Senior Associate Justice Antonio T. Carpio ably points to the UN Convention on the Law
of the Sea (UNCLOS) as basis for the waiver of sovereign immunity in this case, on
account of a warship entering a restricted area and causing damage to the TRNP reef
system. This is based on a reading of Articles 31 and 32 of the UNCLOS,
thus:chanRoblesvirtualLawlibrary

Article 31

Responsibility of the flag State for damage caused by a warship or other government
ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the
coastal State resulting from the non-compliance by a warship or other government ship
operated for non-commercial purposes with the laws and regulations of the coastal State
concerning passage through the territorial sea or with the provisions of this Convention
or other rules of international law.

This is, however, subject to Article 32 of the same treaty which

provides:chanRoblesvirtualLawlibrary

Article 32

Immunities of warships and other government ships operated for non-commercial

purposes

With such exceptions as are contained in subsection A and in articles 30 and 31,
nothing in this Convention affects the immunities of warships and other government
ships operated for non-commercial purposes.

I agree that the UNCLOS does provide an opening clarifying the “international
responsibility” of the flag ship for non-compliance by a warship with the laws of a coastal
State. However, because of Article 32 of the same treaty, it would seem that it should
not be the only basis for this court to infer either a waiver by the United States or
authority under international law for domestic courts to shape their own doctrines of
sovereign jurisdictional immunity.
Other international agreements

The text of Article VII, Section 21 would seem to require Senate concurrence for treaties
and “international agreements.” The term “international agreements,” however, for
purposes of granting sovereign immunity, should not cover mere executive agreements.

We are aware of Bayan Muna v. Romulo116 where the ponente for this court
held:chanRoblesvirtualLawlibrary

. . . International agreements may be in the form of (1) treaties that require

legislative concurrence after executive ratification; or (2) executive agreements
that are similar to treaties, except that they do not require legislative concurrence
and are usually less formal and deal with a narrower range of subject matters than
treaties.

Under international law, there is no difference between treaties and executive

agreements in terms of their binding effects on the contracting states concerned,
as long as the negotiating functionaries have remained within their powers.
Neither, on the domestic sphere, can one be held valid if it violates the Constitution.
Authorities are, however, agreed that one is distinct from another for accepted reasons
apart from the concurrence-requirement aspect. As has been observed by US
constitutional scholars, a treaty has greater "dignity" than an executive agreement,
because its constitutional efficacy is beyond doubt, a treaty having behind it the authority
of the President, the Senate, and the people; a ratified treaty, unlike an executive
agreement, takes precedence over any prior statutory enactment.117 (Emphasis
supplied, citations omitted)

This statement, however, should be confined only to the facts of that case. Executive
agreements are not the same as treaties as a source of international law. It certainly
may have a different effect in relation to our present statutes unlike a treaty that is
properly ratified.

Due to the nature of respondents' position in the United States Armed Forces, the
Visiting Forces Agreement of 1998 (VFA) is relevant in this case. In particular, the
question of whether the VFA, executed between the Republic of the Philippines and the
United States government, may be treated as a "treaty" upon which the doctrine of
foreign sovereign immunity is founded must be addressed.

In BAYAN v. Zamora,118 this court tackled the issues pertaining to the constitutionality of
the VFA. It was described as "consist[ing] of a Preamble and nine (9) Articles, [and it]
provides for the mechanism for regulating the circumstances and conditions under which
[the] US Armed Forces and defense personnel maybe present in the Philippines. . . .
"119cralawlawlibrary

As a preliminary issue, this court ruled that the Senate concurrence as required by the
Constitution was achieved, thereby giving VFA a legally binding effect upon the
government.120 However, the agreement's characterization as a "treaty" was put in
question. This court held that despite the non-concurrence of the United States Senate,
the VFA is validly categorized as a treaty:chanRoblesvirtualLawlibrary

This Court is of the firm view that the phrase "recognized as a treaty" means that the
other contracting party accepts or acknowledges the agreement as a treaty. To
require the other contracting state, the United States of America in this case, to submit
the VFA to the United States Senate for concurrence pursuant to its Constitution, is to
accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given
their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. Its language should be understood in the
sense they have in common use.

Moreover, it is inconsequential whether the United States treats the VFA only as
an executive agreement because, under international law, an executive agreement
is as binding as a treaty. To be sure, as long as the VFA possesses the elements
of an agreement under international law, the said agreement is to be taken equally
as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an

international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation." There are many other terms used
for a treaty or international agreement, some of which are: act, protocol,
agreement, compromis d’ arbitrage,concordat, convention, declaration, exchange of
notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international agreements included under the
general term treaty have little or no legal significance. Certain terms are useful, but they
furnish little more than mere description.

Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the
use of those terms, or to the meanings which may be given to them in the internal
law of the State.

Thus, in international law, there is no difference between treaties and executive

agreements in their binding effect upon states concerned, as long as the
negotiating functionaries have remained within their powers. International law
continues to make no distinction between treaties and executive agreements: they
are equally binding obligations upon nations.

In our jurisdiction, we have recognized the binding effect of executive agreements

even without the concurrence of the Senate or Congress. . . .

....

The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up
to the terms of the VFA. For as long as the United States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply with its obligations
under the treaty, there is indeed marked compliance with the mandate of the
Constitution.121 (Emphasis supplied, citations omitted)

Under the US legal system, however, an executive agreement, while legally binding,
may not have the same effect as a treaty. It may, under certain circumstances, be
considered as inferior to US law and/or Constitution. According to
Garcia:122cralawlawlibrary

Under the U.S. legal system, international agreements can be entered into by means of
a treaty or an executive agreement. The Constitution allocates primary responsibility for
entering into such agreements to the executive branch, but Congress also plays an
essential role. First, in order for a treaty (but not an executive agreement) to become
binding upon the United States, the Senate must provide its advice and consent to treaty
ratification by a two-thirds majority. Secondly, Congress may authorize congressional-
executive agreements. Thirdly, many treaties and executive agreements are not self-
executing, meaning that implementing legislation is required to provide U.S. bodies with
the domestic legal authority necessary to enforce and comply with an international
agreement’s provisions.

The status of an international agreement within the United States depends on a

variety of factors. Self-executing treaties have a status equal to federal statute,
superior to U.S. state law, and inferior to the Constitution. Depending upon the nature
of executive agreements, they may or may not have a status equal to federal
statute. In any case, self-executing executive agreements have a status that is
superior to U.S. state law and inferior to the Constitution. Treaties or executive
agreements that are not self-executing have been understood by the courts to
have limited status domestically; rather, the legislation or regulations
implementing these agreements are controlling.123 (Emphasis supplied, citation
omitted)

Domestic politics and constitutional guidelines also figure into the effect of an executive
agreement in the United States. Garcia adds:chanRoblesvirtualLawlibrary

The great majority of international agreements that the United States enters into
are not treaties but executive agreements—agreements entered into by the
executive branch that are not submitted to the Senate for its advice and consent.
Congress generally requires notification upon the entry of such an agreement. Although
executive agreements are not specifically discussed in the Constitution, they
nonetheless have been considered valid international compacts under Supreme Court
jurisprudence and as a matter of historical practice.

....

Sole executive agreements rely on neither treaty nor congressional authority to provide
for their legal basis. The Constitution may confer limited authority upon the President to
promulgate such agreements on the basis of his foreign affairs power. If the President
enters into an executive agreement pursuant to and dealing with an area where he has
clear, exclusive constitutional authority — such as an agreement to recognize a
particular foreign government for diplomatic purposes — the agreement is legally
permissible regardless of Congress’s opinion on the matter. If, however, the President
enters into an agreement and his constitutional authority over the agreement’s subject
matter is unclear, a reviewing court may consider Congress’s position in determining
whether the agreement is legitimate. If Congress has given its implicit approval to the
President entering the agreement, or is silent on the matter, it is more likely that the
agreement will be deemed valid. When Congress opposes the agreement and the
President’s constitutional authority to enter the agreement is ambiguous, it is unclear if
or when such an agreement would be given effect.124 (Emphasis supplied, citation
omitted)

The recognition of the complex nature and legal consequences of an executive

agreement entered into by the United States with another State must not be taken
lightly. This is especially in light of the invocation of "international comity", which loosely
refers to "applying foreign law or limiting domestic jurisdiction out of respect for foreign
sovereignty."125cralawlawlibrary

As it stands, international comity is by itself no longer a simple matter. In quoting an

1895 US case, Hilton v. Guyot,126 Paul argues that at the beginning of the 20th century,
the underlying principle of international comity was the respect afforded by one
sovereign to another. At present, however, Paul posits:chanRoblesvirtualLawlibrary

For all these reasons, international comity would seem to be too vague,
incoherent, illusory, and ephemeral to serve as a foundation for U.S. private
international law. Yet, it is precisely these qualities that have allowed the doctrine of
international comity to mutate over time in ways that respond to different
geopolitical circumstances.Specifically, international comity has shifted in three
distinct respects. First, the meaning of comity has shifted over time. Originally,
international comity was a discretionary doctrine that empowered courts to decide when
to defer to foreign law out of respect for foreign sovereigns. Comity has become a rule
that obligates courts to apply foreign law in certain circumstances. Second, the object
of comity has changed. Whereas once courts justified applying foreign law out of
deference to foreign sovereigns, courts later justified their decisions out of deference to
the autonomy of private parties or to the political branches. Most recently, courts have
justified limits on domestic law out of deference to the global market. Third, the function
of comity has changed. Comity is no longer merely a doctrine for deciding when to
apply foreign law; it has become a justification for deference in a wide range of cases
concerning prescriptive, adjudicatory, and enforcement jurisdiction. (Emphasis supplied,
citation omitted)

On a substantive note, another issue raised in BAYAN v. Zamora is whether the VFA
amounted to an abdication of Philippine sovereignty insofar as the jurisdiction of local
courts "to hear and try offenses committed by US military personnel"127 was
concerned. Upon finding at the outset that the VFA did not amount to grave abuse of
discretion, this court no longer proceeded to rule on this
matter:chanRoblesvirtualLawlibrary

In fine, absent any clear showing of grave abuse of discretion on the part of
respondents, this Court — as the final arbiter of legal controversies and staunch
sentinel of the rights of the people — is then without power to conduct an
incursion and meddle with such affairs purely executive and legislative in
character and nature. For the Constitution no less, maps out the distinct boundaries
and limits the metes and bounds within which each of the three political branches of
government may exercise the powers exclusively and essentially conferred to it by
law.128 (Emphasis supplied)

In sum, the extent of the VFA's categorization as between the Philippine and United
States government — either as a "treaty"/"executive agreement" or as a matter subject
to international comity — remains vague. Nevertheless, it is certain that the United
States have made a political commitment to recognize the provisions and execute their
obligations under the VFA. This includes respecting jurisdictional issues in cases
involving an offense committed by a US military personnel.

Sovereign immunity as
customary international law

Customary international law traditionally pertains to:chanRoblesvirtualLawlibrary

. . . the collection of international behavioral regularities that nations over time

come to view as binding on them as a matter of law. This standard definition contain
two elements. There must be a widespread and uniform practice of
nations. And nations must engage in the practice out of a sense of legal
obligation. This second requirement, often referred to as opinio juris, is the central
concept of CIL. Because opinio juris refers to the reason why a nation acts in
accordance with a behavioral regularity, it is often described as the “psychological”
element of CIL. It is what distinguishes a national act done voluntarily or out of comity
from one that a nation follows because required to do so by law. Courts and scholars
say that a longstanding practice among nations “ripens” or “hardens” into a rule of CIL
when it becomes accepted by nations as legally binding.129(Emphasis supplied, citation
omitted)

Nagan and Root130 categorize the doctrine of sovereign immunity as a customary rule of
international law. They argue that the doctrine, which is also referred to as jurisdictional
immunity, "has its roots in treaties, domestic statutes, state practice, and the writings of
juris consults".131 Quoting United States law,132 Nagan and Root
state:chanRoblesvirtualLawlibrary

. . . The doctrine of jurisdictional immunity takes the abstract concept of

sovereignty and applies it to facts on the ground. As the Restatement notes, “Under
international law, a state or state instrumentality is immune from the jurisdiction of the
courts of another state . . . .” The Restatement further states unambiguously that the rule
of sovereign immunity is “an undisputed principle of international law.” . . .

The doctrine of sovereign immunity is one of the older concepts in customary

international law. . . .133 (Emphasis supplied, citation omitted)

While the doctrine in itself is recognized by states, they do so only in

abstraction.134cralawlawlibrary

There appears to be a general recognition that foreign states are to be afforded

immunity on account of equality of states, but the "practice" lacks uniformity. Finke
points out that the doctrine as exercised by different states suffers from "substantial
disagreement on detail and substance."135 The inconsistencies in state practice render
the possibility of invoking international comity even more problematic.

The legislation of other states highlight the differences in specific treatment of sovereign
immunity. For instance, the United States Foreign Sovereign Immunities Act (FSIA) of
1978 was enacted in order to render uniform determinations in cases involving
sovereign immunity.136 While it recognizes sovereign immunity, it provides the following
exceptions:chanRoblesvirtualLawlibrary

. . . the general principle that a foreign state is immune from the jurisdiction of the
courts of the United States, but sets forth several limited exceptions. The primary
exceptions are

1. waiver (“the foreign state has waived its immunity either expressly or by
implication”),

2. commercial activity (“the action is based upon a commercial activity carried on in

the United States by the foreign state”),and

3. torts committed by a foreign official within the United States (the “suit is brought
against a foreign State for personal injury or death, or damage to property occurring
in the United States as a result of the tortious act of an official or employee of that
State acting within the scope of his office or employment”).(Emphasis supplied,
citation omitted)

The United Kingdom State Immunity Act of 1978 also recognizes general immunity from
jurisdiction, subject to the following exceptions: a) submission to jurisdiction;137 b)
commercial transactions and contracts to be performed in the United Kingdom;138 c)
contracts of employment;139 d) personal injuries and damage to property;140 e)
ownership, possession, and use of property;141 f) patents, trademarks, etc.;142 g)
membership of bodies corporate, etc.;143 h) arbitration;144 i) ships used for commercial
purposes;145 and value-added tax, customs duties, etc.146cralawlawlibrary

The Australian Foreign States Immunities Act of 1985 provides for exceptions similar to
the ones found in the United Kingdom law.147cralawlawlibrary

Aside from the variations in foreign laws, rulings in domestic cases have also remained
on a theoretical level. There appears to be a general refusal by international bodies to
set particular rules and guidelines for the disposition of actual cases involving sovereign
immunity.

Two cases are relevant for the purpose of discussing sovereign immunity as an
international customary norm: the International Court of Justice's decision in Germany v.
Italy, and the International Tribunal for the Law of the Sea's procedural order on the Ara
Libertad case. While stare decisis does not apply, these are nevertheless instructive in
understanding the status of sovereign immunity in international law.

The issue of sovereign immunity as invoked between two States was dealt with in the
2012 case of Jurisdictional Immunities of the State (Germany v. Italy).148 This arose out
of a civil case brought before Italian domestic courts, seeking reparations from Germany
for grave breaches of international humanitarian law during World War II. 149 The Italian
Court of Cassation held that it had jurisdiction over the claims on the ground that state
immunity was untenable if the act complained of was an international
crime.150 Thereafter, an Italian real estate owned by Germany was attached for
execution.151 As a result, Germany brought the case before the International Court of
Justice, questioning the legality of the judgment rendered by the Italian court. It based its
claim on state immunity.152cralawlawlibrary

The International Court of Justice ruled that Italy had violated customary international
law when it took cognizance of the claim against Germany before its local courts.153 It
held that:chanRoblesvirtualLawlibrary

In the present context, State practice of particular significance is to be found in the

judgments of national courts faced with the question whether a foreign State is
immune, the legislation of those States which have enacted statutes dealing with
immunity, the claims to immunity advanced by States before foreign courts and
the statements made by States, first in the course of the extensive study of the
subject by the International Law Commission and then in the context of the
adoption of the United Nations Convention. Opinio juris in this context is reflected
in particular in the assertion by States claiming immunity that international law
accords them a right to such immunity from the jurisdiction of other States; in the
acknowledgment, by States granting immunity, that inter- national law imposes
upon them an obligation to do so; and, conversely, in the assertion by States in
other cases of a right to exercise jurisdiction over foreign States. While it may be
true that States sometimes decide to accord an immunity more extensive than that
required by international law, for present purposes, the point is that the grant of
immunity in such a case is not accompanied by the requisite opinio juris and therefore
sheds no light upon the issue currently under consideration by the Court.

56. Although there has been much debate regarding the origins of State immunity and
the identification of the principles underlying that immunity in the past, the International
Law Commission concluded in 1980 that the rule of State immunity had been
“adopted as a general rule of customary international law solidly rooted in the
current practice of States” (Yearbook of the International Law Commission, 1980, Vol.
II (2), p. 147, para. 26). That conclusion was based upon an extensive survey of
State practice and, in the opinion of the Court, is confirmed by the record of
national legislation, judicial decisions, assertions of a right to immunity and the
comments of States on what became the United Nations Convention. That practice
shows that, whether in claiming immunity for themselves or according it to
others, States generally proceed on the basis that there is a right to immunity
under international law, together with a corresponding obligation on the part of
other States to respect and give effect to that immunity.

57. The Court considers that the rule of State immunity occupies an important
place in international law and international relations. It derives from the principle
of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of
the United Nations makes clear, is one of the fundamental principles of the
international legal order.

This principle has to be viewed together with the principle that each State
possesses sovereignty over its own territory and that there flows from that
sovereignty the jurisdiction of the State over events and persons within that
territory. Exceptions to the immunity of the State represent a departure from the
principle of sovereign equality.Immunity may represent a departure from the principle
of territorial sovereignty and the jurisdiction which flows from it. (Emphasis
supplied)154chanrobleslaw

The International Court of Justice deemed it unnecessary to discuss the difference

between the application of sovereign immunity in sovereign acts (jus imperii) and non-
sovereign activities (jus gestionis) of a State.155 As to the argument that a serious
violation of international law or peremptory norms (jus cogens) is an exception to
sovereign immunity, the International Court of Justice held
that:chanRoblesvirtualLawlibrary

82. At the outset, however, the Court must observe that the proposition that the
availability of immunity will be to some extent dependent upon the gravity of the unlawful
act presents a logical problem. Immunity from jurisdiction is an immunity not merely
from being subjected to an adverse judgment but from being subjected to the trial
process. It is, therefore, necessarily preliminary in nature. Consequently, a
national court is required to determine whether or not a foreign State is entitled to
immunity as a matter of international law before it can hear the merits of the case
brought before it and before the facts have been established. If immunity were to
be dependent upon the State actually having committed a serious violation of
international human rights law or the law of armed conflict, then it would become
necessary for the national court to hold an enquiry into the merits in order to
determine whether it had jurisdiction. If, on the other hand, the mere allegation
that the State had committed such wrongful acts were to be sufficient to deprive
the State of its entitlement to immunity, immunity could, in effect be negated
simply by skilful construction of the claim.

83. That said, the Court must nevertheless inquire whether customary international law
has developed to the point where a State is not entitled to immunity in the case of
serious violations of human rights law or the law of armed conflict. Apart from the
decisions of the Italian courts which are the subject of the present proceedings, there is
almost no State practice which might be considered to support the proposition that a
State is deprived of its entitlement to immunity in such a case. . . .

84. In addition, there is a substantial body of State practice from other countries which
demonstrates that customary international law does not treat a State’s entitlement
to immunity as dependent upon the gravity of the act of which it is accused or the
peremptory nature of the rule which it is alleged to have violated.

85. That practice is particularly evident in the judgments of national courts.

Arguments to the effect that international law no longer required State immunity
in cases of allegations of serious violations of international human rights law, war
crimes or crimes against humanity have been rejected by the courts in Canada
(Bouzari v. Islamic Republic of Iran, Court of Appeal of Ontario, [2004] Dominion Law
Reports (DLR), 4th Series, Vol. 243, p. 406; ILR, Vol. 128, p. 586; allegations of torture),
France (judgment of the Court of Appeal of Paris, 9 September 2002, and Cour de
cassation, No. 02-45961, 16 December 2003, Bulletin civil de la Cour de cassation (Bull.
civ.), 2003, I, No. 258, p. 206 (the Bucheron case); Cour de cassation, No. 03-41851, 2
June 2004, Bull. civ., 2004, I, No. 158, p. 132 (the X case) and Cour de cassation, No.
04-47504, 3 January 2006 (the Grosz case); allegations of crimes against humanity),
Slovenia (case No. Up-13/99, Constitutional Court of Slovenia; allegations of war crimes
and crimes against humanity), New Zealand (Fang v. Jiang, High Court, [2007] New
Zealand Administrative Reports (NZAR), p. 420; ILR, Vol. 141, p. 702; allegations of
torture), Poland (Natoniewski, Supreme Court, 2010, Polish Yearbook of International
Law, Vol. XXX, 2010, p. 299; allegations of war crimes and crimes against humanity)
and the United Kingdom (Jones v. Saudi Arabia, House of Lords, [2007] 1 Appeal Cases
(AC) 270; ILR, Vol. 129, p. 629; allegations of torture).

....

93. This argument therefore depends upon the existence of a conflict between a rule, or
rules, of jus cogens, and the rule of customary law which requires one State to accord
immunity to another. In the opinion of the Court, however, no such conflict exists.
Assuming for this purpose that the rules of the law of armed conflict which prohibit the
murder of civilians in occupied territory, the deportation of civilian inhabitants to slave
labour and the deportation of prisoners of war to slave labour are rules of jus cogens,
there is no conflict between those rules and the rules on State immunity. The two sets
of rules address different matters. The rules of State immunity are procedural in
character and are confined to determining whether or not the courts of one State
may exercise jurisdiction in respect of another State. They do not bear upon the
question whether or not the conduct in respect of which the proceedings are
brought was lawful or unlawful. That is why the application of the con- temporary law
of State immunity to proceedings concerning events which occurred in 1943-1945 does
not infringe the principle that law should not be applied retrospectively to determine
matters of legality and responsibility (as the Court has explained in paragraph 58
above). For the same reason, recognizing the immunity of a foreign State in
accordance with customary international law does not amount to recognizing as
lawful a situation created by the breach of a jus cogens rule, or rendering aid and
assistance in maintaining that situation, and so cannot contravene the principle in
Article 41 of the International Law Commission’s Articles on State Responsibility.

95. To the extent that it is argued that no rule which is not of the status of jus
cogens may be applied if to do so would hinder the enforcement of a jus cogens
rule, even in the absence of a direct conflict, the Court sees no basis for such a
proposition. A jus cogens rule is one from which no derogation is permitted but the
rules which determine the scope and extent of jurisdiction and when that jurisdiction may
be exercised do not derogate from those substantive rules which possess jus cogens
status, nor is there anything inherent in the concept of jus cogens which would require
their modification or would displace their application. The Court has taken that approach
in two cases, notwithstanding that the effect was that a means by which a jus cogens
rule might be enforced was rendered unavailable. In Armed Activities, it held that the
fact that a rule has the status of jus cogens does not confer upon the Court a
jurisdiction which it would not otherwise possess(Armed Activities on the Territory
of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 32, para. 64, and p. 52,
para. 125). In Arrest Warrant, the Court held, albeit without express reference to the
concept of jus cogens, that the fact that a Minister for Foreign Affairs was accused of
criminal violations of rules which undoubtedly possess the character of jus cogens did
not deprive the Democratic Republic of the Congo of the entitlement which it possessed
as a matter of customary international law to demand immunity on his behalf (Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
I.C.J. Reports 2002, p. 24, para. 58, and p. 33, para. 78). The Court considers that the
same reasoning is applicable to the application of the customary international law
regarding the immunity of one State from proceedings in the courts of
another.156chanrobleslaw

Though pertaining to provisional measures, another case that involved the issue of
sovereign immunity is the "Ara Libertad" case (Argentina v. Ghana). Lodged before the
International Tribunal for the Law of the Sea (ITLOS), the case arose after "ARA Fragata
Libertad," an Argentinian warship, was alleged to have been detained and subjected to
several judicial measures by the Republic of Ghana.157 In doing so, Argentina alleged
that Ghana violated the immunities from jurisdiction and execution extended to the
warship by its flag.158cralawlawlibrary

Ghana countered:chanRoblesvirtualLawlibrary

. . . that the coastal State [Ghana] enjoys full territorial sovereignty over internal
waters, and that any foreign vessel located in internal waters is subject to the
legislative, administrative, judicial and jurisdictional powers of the coastal
State."159 (Emphasis supplied)

The order dated December 15, 2012 ruled the following:chanRoblesvirtualLawlibrary

. . . that a warship is an expression of the sovereignty of the State whose flag it

flies;160cralawlawlibrary

. . . in accordance with general international law, a warship enjoys immunity, including in

internal waters. . . .161cralawlawlibrary

....

Ghana shall forthwith and unconditionally release the frigate ARA Libertad, shall ensure
that the frigate ARA Libertad, its Commander and crew are able to leave the port of
Tema and the maritime areas under the jurisdiction of Ghana, and shall ensure that the
frigate ARA Libertad is resupplied to that end.162 (Citation supplied)

In sum, the International Court of Justice's position that sovereign immunity remains
applicable even if the action is based upon violations of international law should be
limited only to acts during armed conflict. Jurisdictional Immunities of the State
(Germany v. Italy) also referred to actions commited during World War II and especially
referred to the situation of international law at that time. The majority reflected the
attitude that sovereign immunity is a customary norm. It, however, recognizes that
uniformity in state practice is far from the consensus required to articulate specific rules
pertaining to other circumstances — such as transgressions of foreign warships of
domestic legislation while granted innocent passage. It impliedly accepted that states
enjoyed wide latitude to specify their own norms.

The provisional order in the ITLOS Ara Libertad case should also be read within its
factual ambient. That is, that the warship was the subject of seizure to enforce a
commercial obligation of its flag state. In this case, the foreign warship enjoys sovereign
immunity. The case, however, did not interpret Sections 31 and 32 of the UNCLOS.

On this note, it is my opinion that there would be no violation of customary

international law or existing treaty law if this court further refines the limits of the
doctrine of sovereign immunity's application when determining jurisdictional
immunities of foreign warships specifically when it violates domestic laws
implementing international obligations even while on innocent passage.

Sovereign immunity as
general principle of law

There are indications from international legal scholars that sovereign immunity might
make more sense if it is understood as a general principle of international law rather
than as international obligation arising out of treaty or customary norm.

Finke suggests that this provides the better platform. Whereas a rule is more precise
and consistent in both its application and legal consequences, a principle "allows for a
broader spectrum of possible behaviour."163 Principles recognize a general idea and
serve as a guide in policy determinations, rather than prescribe a particular mode of
action, which is what rules do. This distinction is significant, as principles provide the
leeway to accommodate legal and factual circumstances surrounding each case that
customary rules generally do not.164cralawlawlibrary

General principles of international law are said to be:chanRoblesvirtualLawlibrary

. . . an autonomous, created by general consensus, systematically fundamental part of

International Law, that consists of different normative notions, in which judges refer to,
through a creative process, in order to promote the consistency of International
Law.165chanrobleslaw

Clearly, sovereign immunity is a doctrine recognized by states under the international

law system. However, its characterization as a principle is more appropriate in that "the
extent to which foreign states are awarded immunity differs from state to state."166 This
appears to be an accepted arrangement in light of the different state immunity laws all
over the world.

As it stands, states are allowed to draw the line in the application of sovereign immunity
in cases involving foreign states and their agents. As a principle of international law, it is
deemed automatically incorporated in our domestic legal system as per Article II,
Section 2 of the Constitution. Considering this leeway, along with the urgency and
importance of the case at hand, the Philippines is, therefore, free to provide guidelines
consistent with international law, domestic legislation, and existing jurisprudence.

Exceptions to sovereign
immunity

Our own jurisprudence is consistent with the pronouncement that the doctrine of
sovereign immunity is not an absolute rule. Thus, the doctrine should take the form
of relative sovereign jurisdictional immunity.167cralawlawlibrary
The tendency in our jurisprudence moved along with the development in other states.

States began to veer away from absolute sovereign immunity when "international trade
increased and governments expanded into what had previously been private
spheres."168 The relative theory of sovereign immunity distinguishes a state's official
(acta jure imperii) from private (acta jure gestionis) conduct.169 The distinction is
founded on the premise "[that] once the sovereign has descended from his throne and
entered the marketplace[,] he has divested himself of his sovereign status and is
therefore no longer immune to the domestic jurisdiction of the courts of other
countries."170cralawlawlibrary

In the 2003 case of Republic of Indonesia v. Vinzon, this court enunciated that in cases
involving foreign states, the basis of sovereign immunity is the maxim par in parem non
habet imperium. Founded on sovereign equality, a state cannot assert its jurisdiction
over another.171 To do so otherwise would "unduly vex the peace of
nations."172 However, it also underscored that the doctrine only applies to public acts or
acts jure imperii, thus, referring to the relative theory. JUSMAG Philippines v.
NLRC173 discussed the restrictive application:chanRoblesvirtualLawlibrary

In this jurisdiction, we recognize and adopt the generally accepted principles of

international law as part of the law of the land. Immunity of State from suit is one of
these universally recognized principles. In international law, "immunity" is
commonly understood as an exemption of the state and its organs from the
judicial jurisdiction of another state. This is anchored on the principle of the
sovereign equality of states under which one state cannot assert jurisdiction over
another in violation of the maxim par in parem non habet imperium (an equal has no
power over an equal).

....

As it stands now, the application of the doctrine of immunity from suit has been
restricted to sovereign or governmental activities (jure imperii). The mantle of
state immunity cannot be extended to commercial, private and proprietary acts
(jure gestionis).174(Emphasis supplied, citations omitted)

In United States of America v. Ruiz,175 which dealt with a contract involving the repair of
wharves in Subic Bay's US naval installation, this court further adds
that:chanRoblesvirtualLawlibrary

. . . the correct test for the application of State immunity is not the conclusion of a
contract by a State but the legal nature of the act. . . .176(Emphasis supplied)

In JUSMAG, this court stated:chanRoblesvirtualLawlibrary

. . . if the contract was entered into in the discharge of its governmental functions,
the sovereign state cannot be deemed to have waived its immunity from
suit.177 (Emphasis supplied, citation omitted)

These cases involved contracts. This made the determination of whether there was
waiver on the part of the state simpler.

Further in Municipality of San Fernando, La Union v. Firme,178 this court stated that two
exceptions are a) when the State gives its consent to be sued and b) when it enters into
a business contract.179 It ruled that:chanRoblesvirtualLawlibrary

Express consent may be embodied in a general law or a special law.

....

Consent is implied when the government enters into business contracts, thereby
descending to the level of the other contracting party, and also when the State files a
complaint, thus opening itself to a counterclaim.180 (Emphasis supplied, citations
omitted)

Other exceptions are cases involving acts unauthorized by the State, and violation of
rights by the impleaded government official. In the 1970 case of Director of Bureau of
Telecommunications, et al. v. Aligaen, et al.,181 this court held
that:chanRoblesvirtualLawlibrary

Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or violated by such
acts, for the protection of his rights, is not a suit against the State within the rule
of immunity of the State from suit. In the same tenor, it has been said that an action
at law or suit in equity against a State officer or the director of a State department
on the ground that, while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an unconstitutional act or
under an assumption of authority which he does not have, is not a suit against the
State within the constitutional provision that the State may not be sued without its
consent.182 (Emphasis supplied, citations omitted)

Shauf v. Court of Appeals183 evolved the doctrine further as it stated that "[the] rational
for this ruling is that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice."184cralawlawlibrary

Tortious acts or crimes committed while discharging official functions are also not
covered by sovereign immunity. Quoting the ruling in Chavez v. Sandiganbayan,185 this
court held American naval officers personally liable for damages in Wylie v.
Rarang,186 to wit:chanRoblesvirtualLawlibrary

. . . The petitioners, however, were negligent because under their direction they issued
the publication without deleting the name "Auring." Such act or omission is ultra
vires and cannot be part of official duty. It was a tortious act which ridiculed the private
respondent.187

We note that the American naval officers were held to be accountable in their personal
capacities.188cralawlawlibrary

As it stands, the Philippines has no law on the application of sovereign immunity in

cases of damages and/or violations of domestic law involving agents of a foreign
state. But our jurisprudence does have openings to hold those who have committed an
act ultra vires responsible in our domestic courts.

As previously discussed, it was held in Germany v. Italy that the issue of implied waiver
of sovereign immunity and a State's commission of a serious violation of a peremptory
norm (jus cogens) are two independent areas. This reflects one of the positions taken
by scholars in the jurisdiction-immunity discourse:chanRoblesvirtualLawlibrary

Jurisdiction and its limits have developed differently depending on the subject matter.
The jurisdiction to adjudicate in civil matters has, for example, developed mainly in the
context of private international law, even though it is not unrelated to public international
law. Immunity, on the other hand, is linked to official acts of a state (if we accept
the principal distinction between private and public acts) and is therefore more
sensitive to the sovereignty of the foreign state. Linking immunity to the limits of
jurisdiction to adjudicate in civil matters would therefore mean disregarding the official
character of the foreign state's conduct.189 (Emphasis supplied, citation omitted)

This ruling holds no value as a precedent, and, therefore, does not preclude the
Philippines to make a determination that may be different from the International Court of
Justice's ruling. Its value must only be to elucidate on the concept of sovereign
immunity, in the context of that case, as the general rule with the possibility of other
exceptions.

Furthermore, if we consider the doctrine of sovereign immunity as a binding general

principle of international law rather than an international customary norm, the particular
rules and guidelines in its application and invocation may be determined on a domestic
level either through statute or by jurisprudence.

It is difficult to imagine that the recognition of equality among nations is still, in these
modern times, as absolute as we have held it to be in the past or only has commercial
acts as an exception. International law has conceded jus cogens rules of international
law and other obligations erga omnes. It is time that our domestic jurisprudence adopts
correspondingly.

Considering the flexibility in international law and the doctrines that we have evolved so
far, I am of the view that immunity does not necessarily apply to all the foreign
respondents should the case have been brought in a timely manner, with the
proper remedy, and in the proper court. Those who have directly and actually
committed culpable acts or acts resulting from gross negligence resulting in the
grounding of a foreign warship in violation of our laws defining a tortious act or
one that protects the environment which implement binding international
obligations cannot claim sovereign immunity.

Certainly, this petition being moot and not brought by the proper parties, I agree that it is
not the proper case where we can lay down this doctrine. I, therefore, can only concur
in the result.

ACCORDINGLY, I vote to DISMISS the petition.

Philippine Supreme Court Jurisprudence > Year 2008 > October 2008 Decisions > G.R.
No. 183591 - G.R. NOS. 183591, 183572, 183893, 183951 and 183962 - VELASCO,
JR. - DISSENTING OPINION : THE PROVINCE OF COTOBATO v. THE GOV'T OF
THE REPUBLIC OF THE PHILIPPINES, ET AL.:

G.R. No. 183591 - G.R. NOS. 183591, 183572, 183893, 183951 and 183962 -
VELASCO, JR. - DISSENTING OPINION : THE PROVINCE OF COTOBATO v. THE
GOV'T OF THE REPUBLIC OF THE PHILIPPINES, ET AL.

EN BANC

[G.R. NO. 183591 : October 14, 2008]

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS

SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own
behalf, Petitioners, v. 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, Respondent.

[G.R. NO. 183752 : October 14, 2008]

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

LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident
of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep.
ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, Petitioners, v. 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, Respondent.

[G.R. NO. 183893 : October 14, 2008]

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

CRUZ, Petitioner, v.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. Respondent.

[G.R. NO. 183951 : October 14, 2008]

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented

by HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON.
FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the
Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON,
Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS,
Congressman, 3rd Congressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO
M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH
BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S.
DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E.
TORRINO, Petitioners, v. 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,Respondent.

[G.R. NO. 183962 : October 14, 2008]

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

III, Petitioners, v. 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.

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, Petitioners-in-Intervention.

SEN. MANUEL A. ROXAS, Petitioners-in-Intervention.

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

DEANO,Petitioners-in-Intervention,

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR

CHERRYLYN P. SANTOS-AKBAR, Petitioners-in-Intervention.

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.

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.

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.

MARINO RIDAO and KISIN BUXANI, Petitioners-in-Intervention.

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), Respondent-in-

Intervention.

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT

(MMMPD), Respondent-in-Intervention.

DISSENTINGOPINION

VELASCO, JR., J.:

It is a well-settled canon of adjudication that an issue assailing the constitutionality of a

government act should be avoided whenever possible.1 Put a bit differently, courts will
not touch the issue of constitutionality save when the decision upon the constitutional
question is absolutely necessary to the final determination of the case, i.e., the
constitutionality issue must be the very lis mota of the controversy.2 It is along the line
set out above that I express my dissent and vote to dismiss the consolidated petitions
and petitions-in-intervention principally seeking to nullify the Memorandum of
Agreement on Ancestral Domain (MOA-AD) proposed to be entered into by and
between the Government of the Republic of the Philippines (GRP) and the Moro Islamic
Liberation Front (MILF).

Non-Joinder of MILF: Fatal

The Rules of Court requires all actions to be brought by or against the real party
interest. The requirement becomes all the more necessary with respect to
indispensable parties. For:

Indispensable parties are those with such interest in the controversy that a final decree
would necessarily affect their rights so that courts cannot proceed without their
presence. All of them must be included in a suit for an action to prosper or for a final
determination to be had.3

As it were, the MILF was not impleaded in this case except in G.R. No. 183962. But it
would appear that MILF, doubtless a real party in interest in this proceedings, was not
served a copy of and asked to comment on the petition in G.R. No. 183962.
Significantly, when queried during the oral arguments on the non-inclusion of the MILF,
the petitioners feebly explained that first, they could not implead the MILF because they
did not know where it could be served with summons; and second, they feared that
impleading the MILF would be futile as the group does not acknowledge the Court's
jurisdiction over it.

The importance of joining the MILF in this case cannot be over-emphasized. While the
non-joinder of an indispensable party will generally not deprive the court of jurisdiction
over the subject matter, the only prejudice to the winning party being the non-binding
effect of the judgment on the unimpleaded party, the situation at bar is different. Here,
the unimpleaded party is a party to the proposed MOA-AD no less and the prospective
agreement sought to be annulled involves ONLY two parties--the impleaded respondent
GRP and the MILF. The obvious result is that the Court would not be able to fully
adjudicate and legally decide the case without the joinder of the MILF--the other
indispensable party to the agreement. The reason is simple. The Court cannot nullify a
prospective agreement which will affect and legally bind one party without making said
decision binding on the other contracting party. Such exercise is not a valid, or at least
an effective, exercise of judicial power for it will not peremptorily settle the controversy.
It will not, in the normal course of things, write finis to a dispute.4 Such consequent legal
aberration would be the natural result of the non-joinder of MILF. A court should always
refrain from rendering a decision that will bring about absurdities or will infringe Section
1, Article 8 of the Constitution which circumscribes the exercise of judicial power.

Prematurity and Mootness

The MOA-AD is but a proposal on defined consensus points. The agreement has
remained and will remain a mere proposal as the GRP has put off its signing
permanently.5 The parties to the MOA do not have, in short, the equivalent of, or what
passes as, a perfected and enforceable contract. As things stand, the line dividing the
negotiation stage and the execution stage which would have otherwise conferred the
character of obligatoriness on the agreement is yet to be crossed. In a very real sense,
the MOA-AD is not a document, as the term is juridically understood, but literally a
piece of paper which the parties cannot look up to as an independent source of
obligation, the binding prestation to do or give and the corollary right to exact
compliance. Yet, the petitioners would have the Court nullify and strike down as
unconstitutional what, for all intents and purposes, is a non-existent agreement. Like a
bill after it passes third reading or even awaiting the approval signature of the President,
the unsigned draft MOA-AD cannot plausibly be the subject of judicial review, the
exercise of which presupposes that there is before the court an actual case or, in fine, a
justiciable controversy ripe for adjudication. A justiciable controversy involves a definite
and concrete dispute touching on the legal relations of parties who are pitted against
each other due to their demanding and conflicting legal interests.6 And a dispute is ripe
for adjudication when the act being challenged has had direct adverse effect on the
person challenging it and admits of specific relief through a decree that is conclusive in
character. As aptly observed in Tan v. Macapagal,7 for a case to be considered ripe for
adjudication, it is a prerequisite that something had been accomplished by either branch
of government before a court may step in. In the concrete, the Court could have entered
the picture if the MOA-AD were signed. For then, and only then, can we say there is a
consummated executive act to speak of.

As opposed to justiciable controversy, academic issues or abstract or feigned problems

only call for advices on what the law would be upon a hypothetical state of
facts.8 Were the Court to continue entertain and resolve on the merits these
consolidated petitions, the most that it can legally do is to render an advisory
opinion,9 veritably binding no one,10 but virtually breaching the rule against advisory
opinion set out, if not implied in Section 1, Article VIII charging "courts of justice [the
duty] to settle actual controversies involving rights which are legally demandable and
enforceable."

Prescinding from and anent the foregoing considerations, it can categorically be stated
that what the petitions are pressing on the Court are moot and academic questions. An
issue or a case becomes moot and academic when it ceases to present a justiciable
controversy so that a determination thereof would be without practical use and
value.11 In such cases, there is no actual substantial relief to which the petitioner would
be entitled to and which would be negated by the dismissal of the petition.12 To be sure,
the mootness of a case would not, in all instances, prevent the Court from rendering a
decision thereon.13 So it was that in a host of cases, we proceeded to render a decision
on an issue otherwise moot and academic. Dela Camara v. Enage,14 Gonzales v.
Marcos,15 Lacson v. Perez 16 Albania v. COMELEC,17 Acop v. Guingona II 18 and David
v. Macapagal-Arroyo,19 among other cases, come to mind. David lists the exceptions to
the rule on mootness, thus:

The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest is involved; third, when
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.

A perusal of the cases cited, however, readily reveals that the subject matters thereof
involved jusiticiable controversies. In Dela Camara, for example, there was the
challenged order approving an application for bail bond but at an excessive amount.
The case was rendered moot by the issuance of a subsequent order reducing the
amount. In Gonzales, the petition questioning the validity of the creation of the CCP
Complex by then President Marcos via a executive order which was viewed as a
usurpation of legislative power was mooted by the issuance of a presidential decree
upon the declaration of martial law. In Lacson, assailed was the issuance of
Proclamation No. 36 declaring a state rebellion; in Albania, the petition to nullify the
decision of the COMELEC annulling the proclamation of petitioner as municipal mayor
was rendered moot by the election and proclamation of a new set of municipal officers;
in Acop, the petition to exclude two police officers from the Witness Protection Program
was rendered moot by the fact that the coverage of the two officers under the program
was terminated; and in David, the petition challenging the validity of Presidential
Proclamation (PP) 1017 declaring a state of emergency was rendered moot by the
issuance of PP 1021 declaring that the state of national emergency has ceased.

The element of justiciable controversy is palpably absent in the petitions at bar. For, as
earlier explained, there is really no MOA-AD to speak of since its perfection or effectivity
was aborted by supervening events, to wit: the TRO the Court issued enjoining the
Kuala Lumpur signing of the MOA and the subsequent change of mind of the President
not to sign and pursue the covenant. To repeat, there is, from the start, or from the
moment the first petition was interposed, no actual justiciable controversy to be
resolved or dismissed, the MOA-AD having been unsigned. Be that as it may, there can
hardly be any constitutional issue based on actual facts to be resolved with finality, let
alone a grave violation of the Constitution to be addressed. Surely the Court cannot
reasonably formulate guiding and controlling constitutional principles, precepts,
doctrines or rules for future guidance of both bench and bar based on a non-existing
ancestral domain agreement or by anticipating what the executive department will likely
do or agree on in the future in the peace negotiating table.

Some of my esteemed colleagues in the majority have expressed deep concern with
the ramifications of a signed MOA-AD. Needless to stress, their apprehension as to
such ramifications is highly speculative. Thus, judicial inquiry, assuming for the nonce
its propriety, has to come later, again assuming that the peace instrument is eventually
executed and challenged. At its present unsigned shape, the MOA-AD can hardly be
the subject of a judicial review.

The allegations of unconstitutionality are, for now, purely conjectural. The MOA-AD is
only a part of a lengthy peace process that would eventually have culminated in the
signing of a Comprehensive Compact. Per my count, the MOA-AD makes reference to
a Comprehensive Compact a total of eight times. The last paragraph of the MOA-AD
even acknowledges that, before its key provisions come into force, there would still be
more consultations and deliberations needed by the parties, viz:

Matters concerning the details of the agreed consensus [point] on Governance not
covered under this Agreement shall be deferred to, and discussed during, the
negotiations of the Comprehensive Compact.

Separation of Powers to be Guarded

Over and above the foregoing considerations, however, is the matter of separation of
powers which would likely be disturbed should the Court meander into alien territory of
the executive and dictate how the final shape of the peace agreement with the MILF
should look like. The system of separation of powers contemplates the division of the
functions of government into its three (3) branches: the legislative which is empowered
to make laws; the executive which is required to carry out the law; and the judiciary
which is charged with interpreting the law.20 Consequent to the actual delineation of
power, each branch of government is entitled to be left alone to discharge its duties as it
sees fit.21 Being one such branch, the judiciary, as Justice Laurel asserted in Planas v.
Gil,22 "will neither direct nor restrain executive [or legislative action]." Expressed in
another perspective, the system of separated powers is designed to restrain one branch
from inappropriate interference in the business,23 or intruding upon the central
prerogatives,24 of another branch; it is a blend of courtesy and caution, "a self-executing
safeguard against the encroachment or aggrandizement of one branch at the expense
of the other."25 But this is what the petitioners basically seek: through the overruling
writs of the Court, to enjoin the Philippine Peace Negotiating Panel, or its equivalent,
and necessarily the President, from signing the proposed MOA-AD and from
negotiating and executing in the future similar agreements. The sheer absurdity of the
situation where the hands of executive officials, in their quest for a lasting and
honorable peace, are sought to be tied lest they agree to something irreconcilable with
the Constitution, should not be lost on the Court.

Under our constitutional set up, there cannot be any serious dispute that the
maintenance of the peace, insuring domestic tranquility26 and the suppression of
violence are the domain and responsibility of the executive.27 Now then, if it be
important to restrict the great departments of government to the exercise of their
appointed powers, it follows, as a logical corollary, equally important, that one branch
should be left completely independent of the others, independent not in the sense that
the three shall not cooperate in the common end of carrying into effect the purposes of
the constitution, but in the sense that the acts of each shall never be controlled by or
subjected to the influence of either of the branches.28

Favorably accommodating the petitioners under the premises cannot but be viewed as
a indirect attempt on the part of the Court to control and dictate on the peace
prerogatives of the executive branch, and in the process unduly impairing that branch in
the performance of its constitutional duties. It will distort the delicate balance of
governance which the separation of powers seeks to safeguard.

One Last Word

The Executive Secretary has categorically declared that the government will not sign
the MOA-AD,29which, as couched, may indeed be constitutionally frail or legally infirm.
But the more important point is that the challenged agreement is an unsigned document
without effect and force whatsoever. It conveys no right to and imposes no correlative
obligation on either negotiating party. As an unsigned writing, it cannot be declared
unconstitutional, as some of my colleagues are wont to do.

Accordingly, I vote to DENY the petitions. The factual and legal situations call for this
disposition.

Endnotes:
Philippine Supreme Court Jurisprudence > Year 1992 > June 1992 Decisions > A.M.
No. 90-11-2697-CA June 29, 1992 - IN RE: JUSTICE REYNATO S. PUNO:

EN BANC

[A.M. No. 90-11-2697-CA. June 29, 1992.]

LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court of Appeals

dated 14 November 1990.

RESOLUTION

PADILLA, J.:
Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals, wrote
a letter dated 14 November 1990 addressed to this Court, seeking the correction of his
seniority ranking in the Court of Appeals.

It appears from the records that petitioner was first appointed Associate Justice of the
Court of Appeals on 20 June 1980 but took his oath of office for said position only on 29
November 1982, after serving as Assistant Solicitor General in the Office of the Solicitor
General since 1974. 1

On 17 January 1983, the Court of Appeals was reorganized and became the
Intermediate Appellate Court pursuant to Batas Pambansa Blg. 129 entitled "An Act
Reorganizing the Judiciary. Appropriating Funds Therefor and For Other Purposes." 2
Petitioner was appointed Appellate Justice in the First Special Cases Division of the
Intermediate Appellate Court. On 7 November 1984, petitioner accepted an
appointment to be ceased to be a member of the Judiciary. 3

The aftermath of the EDSA Revolution in February 1986 brought about a reorganization
of the entire government, including the Judiciary. To effect the reorganization of the
Intermediate Appellate Court and other lower courts, a Screening Committee was
created, with the then Minister of Justice, now Senator Neptali Gonzales as Chairman
and then Solicitor General, now Philippine Ambassador to the United Nations Sedfrey
Ordoñez as Vice Chairman. President Corazon C. Aquino, exercising legislative powers
by virtue of the revolution, issued Executive Order No. 33 to govern the aforementioned
reorganization of the Judiciary. 4

The Screening Committee recommended the return of petitioner as Associate Justice of

the new Court of Appeals and assigned him the rank of number eleven (11) in the roster
of appellate court justices. When the appointments were signed by President Aquino on
28 July 1986, petitioner’s seniority ranking changed, however, from number eleven (11)
to number twenty six (26). 5

Petitioner now alleges that the change in his seniority ranking could only be attributed to
inadvertence for, otherwise, it would run counter to the provisions of Section 2 of
Executive Order No. 33, which reads:chanrobles virtual lawlibrary

"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is hereby amended to

read as follows:jgc:chanrobles.com.ph

"SEC. 2. Organization. — There is hereby created a Court of Appeals which shall

consist of a Presiding Justice and fifty Associate Justices who shall be appointed by the
President of the Philippines. The Presiding Justice shall be so designated in his
appointment and the Associate Justice shall have precedence according to the dates of
their respective appointments, or when the appointments of two or more shall bear the
same date, according to the order in which their appointments were issued by the
President. Any Member who is reappointed to the Court after rendering service in any
other position in the government shall retain the precedence to which he was entitled
under his original appointment, and his service in the Court shall, for all intents and
purpose be considered as continuous and uninterrupted." 6

Petitioner elaborates that President Aquino is presumed to have intended to comply

with her own Executive Order No. 33 so much so that the correction of the inadvertent
error would only implement the intent of the President as well as the spirit of Executive
Order No. 33 and will not provoke any kind of constitutional confrontation (between the
President and the Supreme Court). 7

Petitioner points to the case of Justice Oscar Victoriano, former Presiding Justice of the
Court of Appeals who, according to petitioner, was transferred from his position as
Justice of the Court of Appeals to the Ministry of Justice as Commissioner of Land
Registration and in 1986 was reappointed to the Court of Appeals. Petitioner states that
his (Victoriano’s) stint in the Commission of Land Registration did not adversely affect
his seniority ranking in the Court of Appeals, for, in his case, Executive Order No. 33
was correctly applied. 8

In a resolution of the Court en banc dated 29 November 1990, the Court granted
Justice Puno’s request. 9 It will be noted that before the issuance of said resolution,
there was no written opposition to, or comment on petitioner’s aforesaid request. The
dispositive portion of the resolution reads:jgc:chanrobles.com.ph

"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno for correction
of his seniority ranking in the Court of Appeals is granted. The presiding Justice of the
Court of Appeals, the Honorable Rodolfo A. Nocon, is hereby directed to correct the
seniority rank of Justice Puno from number twelve (12) to number five (5). Let copies of
this Resolution be furnished the Court Administrator and the Judicial and Bar Council
for their guidance and information." 10

A motion for reconsideration of the resolution of the Court en banc dated 29 November
1990 was later filed by Associate Justices Jose C. Campos, Jr. and Luis A. Javellana,
two (2) of the Associate Justices affected by the ordered correction. They contend that
the present Court of Appeals is a new Court with fifty one (51) members and that
petitioner could not claim a reappointment to a prior court; neither can he claim that he
was returning to his former court, for the courts where he had previously been
appointed ceased to exist at the date of his last appointment. 11

The Court en banc in a resolution dated 17 January 1992 required the petitioner to file
his comment on the motion for reconsideration of the resolution dated 29 November
1990.

In his Comment, petitioner argues that, by virtue of Executive Order No. 33 read in
relation to B.P. Blg. 129, his seniority ranking in the Court of Appeals is now number
five (5) for, though President Aquino rose to power by virtue of a revolution, she had
pledged at the issuance of Proclamation No. 3 (otherwise known as the Freedom
Constitution) that "no right provided under the unratified 1973 Constitution (shall) be
absent in the Freedom Constitution." 12
Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually re-
enacted the last sentence of Sec. 3, Chapter 1 of B.P. Blg. 129, statutory construction
rules on simultaneous repeal and re-enactment mandate, according to petitioner, the
preservation and enforcement of all rights and liabilities which had accrued under the
original statute. 13 Furthermore, petitioner avers that, although the power of
appointment is executive in character and cannot be usurped by any other branch of
the Government, such power can still be regulated by the Constitution and by the
appropriate law, in this case, by the limits set by Executive Order NO. 33 14 for the
power of appointment cannot be wielded in violation of law. 15

Justices Javellana and Campos were required by the Court to file their reply to Justice
Puno’s comment on their motion for reconsideration of the resolution of the Court en
banc dated 24 January 1991.chanrobles.com:cralaw:red

In their Reply and Supplemental Reply, Associate Justices Javellana and Campos
submit that the appeal or request for correction filed by the petitioner was addressed to
the wrong party. They aver that as petitioner himself had alleged the mistake to be an
"inadvertent error" of the Office of the President, ergo, he should have filed his request
for correction also with said Office of the President and not directly with the Supreme
Court. 16 Furthermore, they point out that petitioner had indeed filed with the Office of
the President a request or petition for correction of his ranking, (seniority) but the same
was not approved such that his recourse should have been an appropriate action
before the proper court and impleading all parties concerned. The aforesaid non-
approval by the Office of the President they argue, should be respected by the
Supreme Court "not only on the basis of the doctrine of separation of powers but also
their presumed knowledge ability and even expertise in the laws they are entrusted to
enforce" 17 for it (the non-approval) is a confirmation that petitioner’s seniority ranking
at the time of his appointment by President Aquino was, in fact, deliberate and not an
"inadvertent error" as petitioner would have the Court believe. 18

The resolution of this controversy is not a pleasant task for the Court since it involves
not only members of the next highest court of the land but persons who are close to
members of this Court. But the controversy has to be resolved. The core issue in this
case is whether the present Court of Appeals is a new court such that it would negate
any claim to precedence or seniority admittedly enjoyed by petitioner in the Court of
Appeals and Intermediate Appellate Court existing prior to Executive Order No. 33 or
whether the present Court of Appeals is merely a continuation of the Court of Appeals
and Intermediate Appellate Court existing prior to said Executive Order No. 33.

It is the holding of the Court that the present Court of Appeals is a new entity, different
and distinct from the Court of Appeals or the Intermediate Appellate Court existing prior
to Executive Order No. 33, for it was created in the wake of the massive reorganization
launched by the revolutionary government of Corazon C. Aquino in the aftermath of the
people power (EDSA) revolution in 1986.

A resolution has been defined as "the complete overthrow of the established

government in any country or state by those who were previously subject to it" 19 or as
"a sudden, radical and fundamental change in the government or political system,
usually effected with violence or at least some acts of violence." 20 In Kelsen’s book,
General Theory of Law and State, it is defined as that which "occurs whenever the legal
order of a community is nullified and replaced by a new order . . . a way not prescribed
by the first order itself." 21

It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the "people power revolution" that the Filipino people tore
themselves away from an existing regime. This revolution also saw the unprecedented
rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as "an
inherent right of a people to cast out their rulers, change their policy or effect radical
reforms in their system of government or institutions by force or a general uprising when
the legal and constitutional methods of making such change have proved inadequate or
are so obstructed as to be unavailable." 22 It has been said that "the locus of positive
law-making power lies with the people of the state" and from there is derived "the right
of the people to abolish, to reform and to alter any existing form of government without
regard to the existing constitution." 23

The three (3) clauses that precede the text of the Provisional (Freedom) Constitution,
24 read:jgc:chanrobles.com.ph

"WHEREAS, the new government under President Corazon C. Aquino was installed
through a direct exercise of the power of the Filipino people assisted by units of the
New Armed Forces of the Philippines;

"WHEREAS, the heroic action of the people was done in defiance of the provisions of
the 1973 Constitution, as amended;

"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by virtue of the

powers vested in me by the sovereign mandate of the people, do hereby promulgate
the following Provisional Constitution."25cralaw:red

These summarize the Aquino government’s position that its mandate is taken from "a
direct exercise of the power of the Filipino people." 26

Discussions and opinions of legal experts also proclaim that the Aquino government
was "revolutionary in the sense that it came into existence in defiance of the existing
legal processes" 27 and that it was a revolutionary government "instituted by the direct
action of the people and in opposition to the authoritarian values and practices of the
overthrown government." 28

A question which naturally comes to mind is whether the then existing legal order was
overthrown by the Aquino government. "A legal order is the authoritative code of a
polity. Such code consists of all the rules found in the enactments of the organs of the
polity. Where the state operates under a written constitution, its organs may be readily
determined from a reading of its provisions. Once such organs are ascertained, it
becomes an easy matter to locate their enactments. The rules in such enactments,
along with those in the constitution, comprise the legal order of that constitutional state."
29 It is assumed that the legal order remains as a "culture system" of the polity as long
as the latter endures 30 and that a point may be reached, however, where the legal
system ceases to be operative as a whole for it is no longer obeyed by the population
nor enforced by the officials. 31

It is widely known that Mrs. Aquino’s rise to the presidency was not due to constitutional
processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution
as a Batasang Pambansa resolution had earlier declared Mr. Marcos at the winner in
the 1986 presidential election. 32 Thus it can be said that the organization of Mrs.
Aquino’s Government which was met by little resistance and her control of the state
evidenced by the appointment of the Cabinet and other key officers of the
administration, the departure of the Marcos Cabinet officials, revampt of the Judiciary
and the Military signalled the point where the legal system then in effect, had ceased to
be obeyed by the Filipino.

The Court holds that the Court of Appeals and Intermediate Appellate Court existing
prior to Executive Order No. 33 phased out as part of the legal system abolished by the
revolution and that the Court of Appeals established under Executive Order No. 33 was
an entirely new court with appointments thereto having no relation to earlier
appointments to the abolished courts, and that the reference to precedence in rank
contained in the last sentence of Sec. 2, BP Blg. No. 129 as amended by Executive
Order No. 33 refers to prospective situations as distinguished from retroactive ones.

But even assuming, arguendo, that Executive Order No. 33 did not abolish the
precedence or seniority ranking resulting from previous appointment to the Court of
Appeals or Intermediate Appellate Court existing prior to the 1986 revolution, it is
believed that President Aquino as head of then revolutionary government, could
disregard or set aside such precedence or seniority in ranking when she made her
appointments to the reorganized Court of Appeals in 1986.

It is to be noted that, at the time of the issuance of Executive Order No. 33, President
Aquino was still exercising the powers of a revolutionary government, encompassing
both executive and legislative powers, such that she could, if she so desired, amend,
modify or repeal any part of B.P. Blg. 129 or her own Executive Order No. 33. It should
also be remembered that the same situation was still in force when she issued the 1986
appointments to the Court of Appeals. In other words, President Aquino, at the time of
the issuance of the 1986 appointments, modified or disregarded the rule embodied in
B.P. Blg. 129 as amended by Executive Order No. 33, on precedence or seniority in the
case of the petitioner, for reasons known only to her. Since the appointment extended
by the President to the petitioner in 1986 for membership in the new Court of Appeals
with its implicit ranking in the roster of justices, was a valid appointment anchored on
the President’s exercise of her then revolutionary powers, it is not for the Court at this
time to question or correct that exercise.
ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the seniority
rankings of members of the Court of Appeals, including that of the petitioner, at the time
the appointments were made by the President in 1986, are recognized and upheld.

SO ORDERED.

Paras, Griño-Aquino, Regalado, Davide, Jr. and Romero, JJ., concur.

Separate Opinions

FELICIANO, J., concurring:chanrob1es virtual 1aw library

I agree with the conclusion reached in the majority opinion written by my learned
brother, Padilla, J. In particular, I agree that the Court of Appeals established by
Executive Order No. 33 is a new court, and was not merely the old Intermediate
Appellate Court with a new label.

If one examines the provisions of B.P. Blg. 129, known as "The Judiciary
Reorganization Act of 1980," relating to the old Intermediate Appellate Court, it is quite
clear that the previously existing Court of Appeals was abolished and a new court,
denominated the Intermediate Appellate Court, was created. Thus, Section 3 of B.P.
Blg. 129 reads as follows:jgc:chanrobles.com.ph

"Sec. 3. Organization. — There is hereby created an Intermediate Appellate Court

which shall consist of a Presiding Appellate Justice and forty-nine Associate Appellate
Justices who shall be appointed by the President of the Philippines. The Presiding
Appellate Justice shall be so designated in his appointment, and the Associate
Appellate Justices shall have precedence according to the dates of their respective
appointments, or when the appointments of two or more of them shall bear the same
date, according to the order in which their appointments were issued by the President.
Any member who is reappointed to the Court after rendering service in any other
position in the government shall retain the precedence to which he was entitled under
his original appointment, and his service in Court shall, to all intents and purposes, be
considered as continuous and uninterrupted." (Emphasis supplied)

Section 44 of the same statute provided as follows:jgc:chanrobles.com.ph

"Sec. 44. Transitory provisions. — The provisions of this Act shall be immediately
carried out in accordance with an Executive Order to be issued by the President. The
Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile
and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the
Municipal Courts, and the Municipal Circuit Courts shall continue to function as
presently constituted and organized, until the completion of the reorganization provided
in this Act as declared by the President. Upon such declaration, the said courts shall be
deemed automatically abolished and the incumbents thereof shall cease to hold office.
The cases pending in the old Courts shall be transferred to the appropriate Courts
constituted pursuant to this Act, together with the pertinent function, records,
equipment, property and the necessary personnel.

x x x

(Emphasis supplied)

Executive Order No. 33, promulgated on 28 July 1986, provided in part as

follows:jgc:chanrobles.com.ph

"Section 2. Section 3, Chapter I of Batas Pambansa Blg. 129, is hereby amended to

read as follows:chanrob1es virtual 1aw library

‘SEC. 3. Organization — There is hereby created a Court of Appeals which shall consist
of a Presiding Justice and fifty Associate Justices who shall be appointed by the
President of the Philippines. The Presiding Justice shall be so designated in his
appointment, and the Associate Justices shall have precedence according to the dates
of their respective appointments, or when the appointments of two or more of them shall
bear the same date, according to the order in which their appointments were issued by
the President. Any member who is reappointed to the Court after rendering service in
any other position in the government shall retain the precedence to which he was
entitled under his original appointment, and his service in the Court shall, for all intents
and purposes, be considered as continuous and uninterrupted.’" (Emphasis supplied)

Although Executive Order No. 33 spoke of amending Section 3, Chapter 1 of B.P. Blg.
129, it will be seen that what really happened was the re-enactment of said Section 3,
Chapter 1 of B.P. Blg. 129. In other words, much more happened than simply the
renaming of the old Intermediate Appellate Court into (once again) Court of Appeals. If
all that Executive Order No. 33 wanted to achieve was the relabeling of the old
Intermediate Appellate Court into the "Court of Appeals," there was no need to amend
or re-enact Section 3 of B.P. Blg. 129. For Section 8 of Executive Order No. 33
provided as follows:jgc:chanrobles.com.ph

"SECTION 8. The terms ‘Intermediate Appellate Court, Presiding Appellate Justice and
Associate Appellate Justice(s)’ used in the Judiciary Reorganization Act of 1980 or in
any other law or executive order shall hereafter mean Court of Appeals, Presiding
Justice and Associate Justice(s), respectively."cralaw virtua1aw library

Thus, President Aquino was quite free, legally speaking to appoint to the new Court of
Appeals whoever in her judgment was fit and proper for membership in that new court
in an order of precedence that she was just then establishing.chanrobles law library

The sentence found in Section 3 of B.P. Blg. 129 as amended or re-enacted through
the medium of Section 2 of Executive Order No. 33 —

"Any Member who is reappointed to the Court after rendering service in any other
position in the government shall retain the precedence to which he was entitled under
his original appointment, and his service in the Court shall, for all intents and purposes,
be considered as continuous and uninterrupted."cralaw virtua1aw library

which my distinguished brother in the Court, Gutierrez, Jr., J., very heavily stressed,
contemplates in my submission the situation of a member of the new Court of Appeals
accepting appointment to some other department or branch of government, outside the
Judiciary, and who later receives an appointment once again to that same Curt of
Appeals. But Mr. Justice Reynato S. Puno was not in such a situation. The last
preceding appointment to the Judiciary of Mr. Justice Reynato S. Puno was to the then
Intermediate Appellate Court newly created by B.P. Blg. 129. In 1984, he left that court
to become Deputy Minister in the Ministry of Justice. His next appointment to the
Judiciary was not to the old Intermediate Appellate Court, which by that time had
passed on to history. His appointment dated 28 July 1986, was, in my view, as already
noted, to the new Court of Appeals established by Executive Order No. 33. Thus, the
last sentence of Section 3 of B.P. Blg. 129 (before re-enactment by Executive Order
No. 33) afforded no basis for a claim to the same numerical precedence in the new
Court of Appeals that he would have been entitled to had the old Intermediate Appellate
Court not gone out of existence. It is difficult for me to understand how a claim to a
particular position in an order of precedence can be made where the court itself, to
which the new appointment is made, is a new and distinct court.

I vote to grant the Motion for Reconsideration.

BELLOSILLO, J., concurring:chanrob1es virtual 1aw library

I agree with the ponencia of Mr. Justice Padilla, so I vote to grant the motion for
reconsideration of Our Resolution of November 29, 1990. I am for respecting the
seniority ranking of the Associate Justices of the Court of Appeals at the time they were
appointed by the President on July 31, 1986.

I must admit that, like Mr. Justice Gutierrez, Jr., and Mr. Justice Padilla, it was not easy
for me to decide to participate in the deliberations in this case considering that it
involves esteemed colleagues in the Court of Appeals. As such, when subject
Resolution was promulgated, I did not react despite the proddings of well-meaning
friends. It refused to be dragged into the "fray" in deference to Justice Reynato S. Puno
who would be adversely affected. I remained firm in my resolve to stay away from the
controversy. It was to me a personal privilege so to do, which i could waive, as I did.

But circumstances have changed; not that I no longer revere my friendship with Justice
Puno, but as a member now of this Court it has become my duty — no longer a mere
privilege, much less a right — to aid the Court in resolving this controversy in the fairest
possible way, a responsibility I find no justification to shirk.

On August 1, 1986, at the oath-taking ceremonies for the newly-appointed members of

the Court of Appeals at Malacañang, when I noticed Justice Puno take a seat on my
right, 1 I asked him to transfer to the left where our senior justices were assigned. I was
assuming that he should be on the left because he was appointed to the old Appellate
Court ahead of me. But he showed me the list where he appeared as No. 26, Justice
Lising, No. 25, and I was No. 24. Since he appeared perturbed with his new rank, I
suggested to him to seek the help of then Justice Secretary Neptali A. Gonzales,
Chairman of the Screening Committee that processed the appointments of the new
members of the Court of Appeals, and who was then just a meter and a half in front of
us. But after talking to Secretary Gonzales, Justice Puno returned to his original
assigned seat. When I asked him what happened, he simply shrugged his shoulders.
Obviously, he failed in his bid.

We then took our oath in the order we were ranked in the list.

Some two (2) months or so later, in an En Banc session back in the Court of Appeals,
as we were seated side by side with Justice Puno, 2 I inquired again from him as to
what happened to his request with Malacañang conveyed through the Presiding Justice
for the correction of his ranking. Justice Puno told me it was not granted.

The letter of then Presiding Justice Emilio A. Gancayco dated August 7, 1986, which
was his second in fact on the subject, addressed to Executive Secretary Joker P.
Arroyo, is enlightening and informative —

"Dear Sir:chanrob1es virtual 1aw library

In relation to my letter of August 5, 1986 informing you of the possible over-sight in the
ranking of Mr. Justice REYNATO S. PUNO in his reappointment as member of this
Court, I am furnishing you a certification of the Clerk of Court to the same effect, and
also in relation to the ranking of Messrs. Rodolfo A. Nocon and Jorge A. Coquia who in
accordance with their original appointment to this Court are more senior than Mr.
Justice Oscar R. Victoriano in the said order.

If Her Excellency President Corazon Aquino should decide to rearrange the ranking of
the incumbent justices of this Court in accordance with the provisions of Section 2,
Executive Order # 33 their proper ranking should be as follows:chanrob1es virtual 1aw
library

No. 3 — Mr. Justice Rodolfo A. Nocon;

No. 4 — Mr. Justice Jorge A. Coquia;

No. 5 — Mr. Justice Oscar R. Victoriano; and

No. 11 — Mr. Justice Reynato S. Puno."cralaw virtua1aw library

While this letter perhaps did not elicit the desired response from Executive Secretary
Arroyo as his answer did not squarely settle the issue, the message is clear, i.e.,
Malacañang did not grant the request for correction of what was perceived to be a
"possible oversight", even after it was twice brought to its attention. Here I am reminded
of the principle in procedure that a motion that is not granted, especially after an
unreasonable length of time, is deemed denied, and the lapse of more than four (4)
years before Justice Puno finally came to Us 3 is reasonably unreasonable.

The letter-appointment of President Corazon C. Aquino addressed to then Chief Justice

Claudio Teehankee dated July 31, 1986, in fact categorically specifies the order of
seniority of her appointees, thus —

"Dear Mr. Chief Justice.

I have appointed the Presiding Justice and the Associate Justices of the Court of
Appeals under the following order of seniority:chanrob1es virtual 1aw library

1. Hon. Emilio A. Gancayco, Presiding Justice . . .

3. Hon. Oscar R. Victoriano, Associate Justice

4. Hon. Rodolfo A. Nocon, Associate Justice

5. Hon. Jorge A. Coquia, Associate Justice . . .

12. Hon. Jose C. Campos, Jr., Associate Justice . . .

16. Hon. Luis A. Javellana, Associate Justice . . .

26. Hon. Reynato S. Puno, Associate Justice . . ."cralaw virtua1aw library

x x x"

Considering the circumstances herein narrated, I find it difficult to yield to the

proposition that an error was committed through inadvertence by Malacañang in the
ranking of the justices appointed to the Court of Appeals on July 31, 1986.

The above-quoted letter of President Aquino also brings to focus the ranking of Justice
Oscar R. Victoriano who was junior to Justices Nocon and Coquia in the old Court, as
reflected in the letter of Presiding Justice Gancayco. However, in the letter of the
President, Justice Victoriano was ranked No. 3, while Justices Nocon and Coquia were
ranked No. 4 and No. 5, respectively. Hence, it is not accurate to say that Justice
Victoriano was reinstated to his former rank in the old Court, but was even given a rank
higher than Justices Nocon and Coquia. This "possible oversight" was also brought to
the attention of Malacañang but, like the case of Justice Puno, no correction was
made.chanrobles virtual lawlibrary

All these clearly support the view of Mr. Justice Padilla in his ponencia, as well as of Mr.
Justice Feliciano in his concurring opinion, that the present Court of Appeals is an
entirely different court, distinct from the old Intermediate Appellate Court or the former
Court of Appeals, with a new members although some were drawn from the now
defunct Intermediate Appellate Court, and that the "error" referred to by Justice Puno
could not have been only through "inadvertence" but deliberate, otherwise, Malacañang
could have readily effected the correction?

But whether the "error" was deliberate or committed through inadvertence, is Our Court
the proper venue for the correction? Can We now correct this alleged error of the
appointing authority? Worse, can We direct the Office of the President to do what is
exclusively within its prerogative?

This brings me to the final point which bothers me still further. If We sustain the claim
that the present Court of Appeals is merely a continuation of the old Intermediate
Appellate Court, or of the old Court of Appeals, then We may be swarmed with requests
not only for re-ranking but also for reinstatement of those who were not reappointed on
July 31, 1986, but against whom no charges have been filed. For then, should they not
be allowed to enjoy their security of tenure as civil servants under the Constitution?

In the case of Justice Jorge S. Imperial, he was a member of the old Intermediate
Appellate Court who was not reappointed to the new Court of Appeals on July 31, 1986.
There was no charge against him. He was later reappointed but only on January 2,
1987. Should We also order that he be reinstated to his former rank in the Intermediate
Appellate Court? Then, We may have to dislodge some of the present division
Chairmen of the Court of Appeals to accommodate him. That would be unsettling,
disturbing, and disruptive of the present system. I do not think We wish this to happen.

GUTIERREZ, JR., J., dissenting:chanrob1es virtual 1aw library

I regret that I have to differ from the position taken by Mr. Justice Padilla regarding the
seniority ranking of Justice Reynato S. Puno in the Court of Appeals.

I agree that the resolution of the controversy is not a pleasant one for us since it
involves persons who are close to the members of this Court. For me, the task is
particularly difficult because apart from close personal relationship, I also highly respect
the parties’ considerable talents, abilities and qualifications. I have known Justice Jose
C. Campos, Jr. since my student days and as a junior member of this Court, I once
urged his nomination for appointment to the Supreme Court even before he started to
serve in the Court of Appeals. Justice Luis A. Javellana was my colleague in the Social
Security System while Justice Reynato S. Puno and I worked together in the Office of
the Solicitor General.

I believe, however, that we can resolve the issues on the basis of the facts and the
applicable law, in the same way that we reverse or affirm the parties’ respective
ponencias disregarding personal feelings or close association.

The applicable provision of law in this case was introduced into the Judiciary Act of
1948 by Rep. Act No. 5204 on June 15, 1968 when it amended the first paragraph of
Section 24 to read:chanrob1es virtual 1aw library
x x x

"Provided, however, that any member of the Court of Appeals who has been
reappointed to that court after rendering service in any other branch of the government
shall retain the precedence to which he is entitled under his original appointment and
his service in court shall, to all intents and purposes, be considered as continuous and
uninterrupted . . ."cralaw virtua1aw library

This provision was reiterated in all subsequent repealing or amendatory acts and
continues to the present. It is found in Batas Pambansa Blg. 129, Section 3 and in
Executive Order No. 33 under President Corazon C. Aquino reorganized the Court of
Appeals.

I respectfully submit that from 1968 to 1992, there was no single moment when this
provision ceased to exist. It was never repealed and never disappeared from the law.
Everybody, including the appointing power is, of course, bound by the law.

I agree with Justice Padilla’s discussion of President Aquino’s powers in a revolutionary

government, a government revolutionary in the sense that it came into existence in
defiance of the existing legal processes.

I, however, believe that the appointments of the Justices of the Court of Appeals in
1986 were not a personal act of a revolutionary President. Far from it.

First, President Aquino’s government ceased to be revolutionary on March 25, 1986

when she promulgated Proclamation No. 3, which she called the Freedom Constitution.
Her government became a constitutional one bound by the Freedom Constitution and
the executive orders issued under its authority.

Second, one significant provision of the Freedom Constitution states that "all elective
and appointive officials and employees under the 1973 Constitution shall continue in
office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such appointment is
made within a period of one year from February 26, 1986." (Section 2, Article
III, Emphasis supplied).

Third, the President implemented the above provision of the Constitution on July 28,
1986 when she issued Executive Order No. 33 which amended B.P. 129. As earlier
stated, Executive Order No. 33 reiterated verbatim the provision of B.P. No. 129 which
provided for retention of precedence of a member who is reappointed after a sting in
another position in the government.

President Aquino was bound by the provisions of Executive Order No. 33 because it is
a law enacted pursuant to constitutional authority. She could no longer act as a
revolutionary President because there was a Constitution, and there were statutes
under that Constitution, in existence.
More important, Executive Order No. 33 was enacted precisely to provide for the
reorganization of the Intermediate Appellate Court into the Court of Appeals. The
President intended that every provision of Executive Order No. 33 should be followed
precisely for the purpose for which it was enacted, namely, reorganization of the
appellate court. I cannot understand the reasoning which says that all provisions of
Executive Order No. 33 must apply in the reorganization of the Court of Appeals except
the provision on retention of seniority by a reappointed member which must be for the
future only.

Even assuming that this one sentence of Executive Order No. 33 was intended to be
prospective, then the President has to follow B.P. No. 129 because Proclamation No. 3,
Article IV provides:jgc:chanrobles.com.ph

"SECTION 1. All existing laws, decrees, executive orders, proclamations, letters of

instruction, implementing rules and regulations, and other executive issuances not
inconsistent with this Proclamation shall remain operative until amended, modified, or
repealed by the President or the regular legislative body to be established under a New
Constitution."cralaw virtua1aw library

For us lawyers, there is one signal feature of President Aquino’s six years in the
presidency and this is her dedicated personal observance of the rule of law. Even when
some of our decisions nullified her favorite projects, she unhesitatingly ordered
compliance with our interpretation of the law. I cannot believe that the President would
knowingly violate one provision of a law she promulgated even as she complied with
ever other provision of that same law.

Not only the law but also the facts support the correctness of our November 29, 1990
resolution.chanrobles law library : red

We stated in our resolution:jgc:chanrobles.com.ph

"Following this specific provision on seniority, the Screening Committee recommended

the return and reappointment of Justice Puno as Associate Justice of the New Court of
Appeals. He was assigned the seniority rank of number eleven (11) following Associate
Justice Vicente V. Mendoza who was given the seniority rank of number ten (10).
Unfortunately, however, due to a mistake which can only be inadvertent, the seniority
rank of Justice Puno appears to have been changed from number eleven (11) to
number twenty six (26), after the appointments in the new Court of Appeals were signed
by President Aquino. Through his letter, Justice Puno prays for the correction of his
seniority ranking alleging that he should now be given the seniority rank of number five
(5) instead of number twelve (12) in the Court of Appeals.

We find the petition for correction of ranking by Justice Puno to be meritorious. The
mistake in the ranking of Justice Puno from number eleven (11) to number twenty six
(26) in the 1986 judicial reorganization has to be corrected, otherwise, there will be a
violation of the clear mandate of Executive Order No. 33 that ‘any member who is
reappointed to the Court after rendering service in any other position in the government
shall retain the precedence to which he was entitled under his original appointment, and
his service in the court shall, for all intents and purposes be considered as continuous
and uninterrupted.’ In fine, the executive service of Justice Puno as Deputy Minister of
Justice should not adversely affect the continuity of his service in the judiciary upon his
return and appointment thereto on July 28,1 986. Otherwise, the salutary purpose of
Executive Order No. 33 which is to attract competent members of the judiciary to serve
in other branches of the government without fear of losing their seniority status in the
judiciary in the event of their return thereto would be defeated . . ." (Res. dtd. 11-29-90,
pp. 2-3)

Nobody disputes the fact that the Screening Committee headed by the then Secretary
of Justice Neptali Gonzales and a member of which was our own Justice Leo D.
Medialdea ranked Justice Reynato S. Puno as No. 11 in their recommendation.

When the appointments came out, Mr. Puno was No. 26. This, of course, violates not
only Executive Order No. 33 but also the laws on the same subject which preceded it.

That the President never intended to violate a key provision of law is shown in the
September 17, 1986 letter of Executive Secretary Joker P. Arroyo, appended to the
Reply submitted by Justices Campos and Javellana. The explanation
reads:jgc:chanrobles.com.ph

"17 September 1986

Hon. Emilio A. Gancayco

Presiding Justice

Court of Appeals

Manila.

Sir:chanrob1es virtual 1aw library

In reply to your enclosed letter of August 7, 1986, please be informed that the President
had nothing to do with the order of seniority. The list and order of seniority was
submitted by a screening committee and passed on to the Supreme Court for review.

Very truly yours,

(SGD.) JOKER P. ARROYO

Executive Secretary"

When Secretary Arroyo states that the President had nothing to do with the order or
sequence of seniority, it means that she just followed the recommendations of her own
Screening Committee, which recommendations had already been reviewed by the
Supreme Court. She did not select any recommendees her own. She never deviated
from the recommendations because everybody recommended was appointed. The
change from No. 11 to No. 26 could not have been a deliberate act of the President as
she had nothing to do with the order of seniority of the Justices she was appointing. The
change could only have been an inadvertence because it was violative not only of the
law but also of the recommendations of her Screening Committee.

There are other matters raised in the letter and reply of Justices Campos and Javellana
which have been answered by Justice Puno in his Comment. I find no need to comment
on them at this time.

I regret if my answer to the query of Justice Campos led him to be lulled into inaction.
Justice Campos called me up over the telephone inquiring about the petition of Justice
Puno before I was aware that there was such a petition. I try to read all petitions filed
with the court en banc but I do so only after they are placed in the agenda and are in
the next order of business of a particular session. My staff never places a copy of any
petition on my desk until it is entered in the agenda. It is unfortunate that Justices
Campos, Camilon, dela Fuente, Javellana, Purisima, de Pano, and Bellosillo were not
furnished copies of the letter-petition of Justice Puno but this is for then Chief Justice
Marcelo B. Fernan and Clerk of Court Atty. Daniel T. Martinez to explain.

Justices Campos and Javellana state that "Justice Puno is 50 years old and to put him
in No. 5 will destroy the chances of those displaced by him who are older than he to
aspire for promotion."cralaw virtua1aw library

The fears of the good Justices are unfounded. Except for the Presiding Justice, a
greater number of "junior" Justices have been appointed in the past ten years to the
Supreme Court from the Court of Appeals, than the most senior Justices of that Court.
In other words, there has been more by passing of senior members than adherence to
the seniority listing. In fact, the latest nominations of the Judicial and Bar Council for
position to which Justice Bellosillo was appointed, included Justice Campos and
excluded Justices Kapunan and Puno. I understand that in the past few vacancies in
this court, Justice Campos has been nominated more often than Justice
Puno.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
Our resolution dated November 29, 1990 correcting the seniority ranking of Justice
Puno was a unanimous decision of this Court except for Mr. Justice Padilla were
discussed and fully deliberated upon. Since our resolution is based on both the facts
and the law, I see no reason why we should modify or set it aside.

I, therefore, vote to reiterate the Court’s resolution dated November 29, 1990.

Narvasa, C.J., Bidin, Medialdea and Nocon, JJ., concur.

CRUZ, J., dissenting:chanrob1es virtual 1aw library

I join Mr. Justice Gutierrez in his dissent, with these brief additional remarks.
Sec. 3 of BP 129 laid down the original precedence rule applicable to members of the
Intermediate Appellate Court. This was embodied in Sec. 2 of EO 33 without change
except as to the name of the court. The first provision was not repealed. As Mr. Justice
Feliciano points out, it was merely "re-enacted."cralaw virtua1aw library

I do not think the re-enacted rule was intended to operate prospectively only. I believe it
continues to be available to the former members of the Intermediate Appellate Court no
less than to the members of the Court of Appeals.

It is a well-known canon of construction that apparently conflicting provisions should be

harmonized whenever possible. The ponencia would instead revoke Sec. 3. of BP 129
even though Sec. 2 of EO 33 has not repealed but in fact re-enacted it. I would
reconcile the two provisions and give effect to both.

Significantly, Sec. 8 of EO 33 provides that "the term Intermediate Appellate Court . . .

shall hereafter mean Court of Appeals."cralaw virtua1aw library

Narvasa, C.J., concurs.

Endnotes: