compilation of pil cases 2013 final (1)

8/10/2019 Compilation of PIL Cases 2013 Final (1)

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PUBLIC INTERNATIONAL LAW

Case No. 1:The Province of North Cotabato vs. Gov.t of thePhii!!ines Peace Pane on Ancestra "o#ain.

D E C I S I O N

CARPIO $ORALE%&J.:

Subject of these consolidated cases is the e'tent of the !o(ers ofthe President in pursuing the peace process. While the factssurrounding this controversy center on the ared con!ict in "indanaobet#een the governent and the "oro Islaic $iberation %ront &"I$%'(the legal issue involved has a bearing on all areas in the country #herethere has been a long)standing ared con!ict. *et again( the Court istas+ed to perfor a delicate balancing act. It ust uncoproisinglydelineate the bounds #ithin #hich the President ay la#fully e,erciseher discretion( but it ust do so in strict adherence to the Constitution(lest its ruling unduly restricts the freedo of action vested by thatsae Constitution in the Chief E,ecutive precisely to enable her topursue the peace process e-ectively.

I. )ACTUAL ANTECE"ENT% O) T*E PETITION%

On ugust /( 0112( the 3overnent of the 4epublic of the Philippines&34P' and the "I$%( through the Chairpersons of their respective peacenegotiating panels( #ere scheduled to sign a "eorandu ofgreeent on the ncestral Doain &"O)D' spect of the 34P)"I$%5ripoli greeent on Peace of 0116 in 7uala $upur( "alaysia.

5he "I$% is a rebel group #hich #as established in "arch 6829 #hen(under the leadership of the late Salaat :ashi( it splintered fro the"oro National $iberation %ront &"N$%' then headed by Nur "isuari( onthe ground( aong others( of #hat Salaat perceived to be theanipulation of the "N$% a#ay fro an Islaic basis to#ards "ar,ist)

"aoist orientations.6

5he signing of the "O)D bet#een the 34P and the "I$% #as not toateriali;e( ho#ever( for upon otion of petitioners( speci


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%oral peace tal+s bet#een the parties #ere held in 5ripoli( $ibya fro>une 01)00( 0116( the outcoe of #hich #as the 34P)"I$% 5ripoligreeent on Peace &5ripoli greeent 0116' containing the basicprinciples and agenda on the follo#ing aspects of thenegotiation %ec+rit, spect( Rehabiitation spect( and Ancestra"o#ain spect. With regard to the ncestral Doain spect( theparties in 5ripoli greeent 0116 siply agreed Athat the sae bediscussed further by the Parties in their ne,t eeting.A

second round of peace tal+s #as held in Cyberjaya( "alaysia on

ugust /)?( 0116 #hich ended #ith the signing of theIpleenting3uidelines on the Security spect of the 5ripoli greeent 0116leading to a cease


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operative e-ect( and that respondents be enjoined fro e,ecuting the"O)D.

On ugust 68( 0112( Ernesto "aceda( >ejoar inay( and FuilinoPientel III


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5he "O)D states that the Parties A:GE 34EED NDC7NOW$ED3ED S %O$$OWS(A and starts #ith its ain body.

The #ain bo6, of the $OA5A" is 6ivi6e6 into fo+r stran6s&na#e,& Conce!ts an6 Princi!es& Territor,& Reso+rces& an6Governance.

A. CONCEPT% AN" PRINCIPLE%

5his strand begins #ith the stateent that it is Athe birthright of all"oros and all Indigenous peoples of "indanao to identify theselvesand be accepted as Qangsaoros.A It de


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than t#elve &60' onths follo#ing the signing of the "O)D.91Category areas( also called ASpecial Intervention reas(A on theother hand( are to be subjected to a plebiscite t#enty)EareaK90that the >E shall also have Aterritorial #aters(A #hich shall

stretch beyond the >E internal #aters up to the baselines of the4epublic of the Philippines &4P' south east and south #est of ainland"indanaoK and that #ithin these territorial #aters( the >E and theACentral 3overnentA &used interchangeably #ith 4P' shalle,erciseoint jurisdiction( authority and anageent over all naturalresources.9@!otabl"# the jurisdiction o$er the internal waters is notsimilarl" described as %joint&%

5he "O)D further provides for the sharin7of inerals onthe territorial #aters bet#een the Central 3overnent and the >E( infavor of the latter( through production sharing and econoiccooperation agreeent.995he activities #hich the Parties are allo#edto conduct on the territorial#aters are enuerated( aong #hich are

the e,ploration and utili;ation of natural resources( regulation ofshipping and E ay #o6if, or cancethe forest concessions( tiberlicenses( contracts or agreeents( ining concessions( "ineralProduction and Sharing greeents &"PS'( Industrial %orest"anageent greeents &I%"'( and other land tenureinstruents granted by the Philippine 3overnent( including thoseissued by the present 4""./6

". GO4ERNANCE

5he "O)D binds the Parties to invite a ultinational third)party toobserve and onitor the ipleentation of theCo#!rehensiveCo#!act. 5his copact is to ebody the Adetails for the e-ectiveenforceentA and Athe echaniss and odalities for the actual

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ipleentationA of the "O)D. 5he "O)D e,plicitly provides thatthe participation of the third party shall not in any #ay a-ect the statusof the relationship bet#een the Central 3overnent and the >E./0

The ;associative; reationshi!bet(een the Centra Govern#entan6 the B8E

5he "O)D describes the relationship of the Central 3overnent andthe >E as Aassociative(A characteri;ed by shared authority and

responsibility. nd it states that the structure of governance is to bebased on e,ecutive( legislative( judicial( and adinistrative institutions#ith de


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5he Solicitor 3eneral argues that there is no justiciable controversythat is ripe for judicial revie# in the present petitions( reasoning that

5he unsigned "O)D is siply a list of consensus pointssubject to further negotiations and legislative enactents as#ell as constitutional processes aied at attaining a


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y the sae to+en( #hen an act of the President( #ho in ourconstitutional schee is a coeFual of Congress( is seriouslyalleged to have infringed the Constitution and the la#s , , ,settling the dispute becoes the duty and the responsibility ofthe courts.==

In Santa 2e Independent School District $& Doe(=?the Lnited StatesSupree Court held that the challenge to the constitutionality of theschools policy allo#ing student)led prayers and speeches beforegaes #as ripe for adjudication( even if no public prayer had yet been

led under the policy( because the policy #as being challenged asunconstitutional on its face.=2

5hat the la# or act in Fuestion is not yet e-ective does not negateripeness. %or e,aple( in !ew 3ork $& 4nited States(=8decided in 6880(the Lnited States Supree Court held that the action by the State ofNe# *or+ challenging the provisions of the $o#)$evel 4adioactiveWaste Policy ct #as ripe for adjudication even if the Fuestionedprovision #as not to ta+e e-ect until >anuary 6( 688=( because theparties agreed that Ne# *or+ had to ta+e iediate action to avoid theprovisions conseFuences.?1

5he present petitions pray for Certiorari(?6Prohibition( and "andaus.

Certiorari and Prohibition are reedies granted by la# #hen anytribunal( board or oBcer has acted( in the case of certiorari( or isproceeding( in the case of prohibition( #ithout or in e,cess of itsjurisdiction or #ith grave abuse of discretion aounting to lac+ ore,cess of jurisdiction.?0"andaus is a reedy granted by la# #henany tribunal( corporation( board( oBcer or person unla#fully neglectsthe perforance of an act #hich the la# speci


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When suing as a citizen( the person coplaining ust allege that hehas been or is about to be denied soe right or privilege to #hich he isla#fully entitled or that he is about to be subjected to soe burdens orpenalties by reason of the statute or act coplained of. 21When theissue concerns a public right( it is suBcient that the petitioner is aciti;en and has an interest in the e,ecution of the la#s.26

%or a ta+pa"er( one is allo#ed to sue #here there is an assertion thatpublic funds are illegally disbursed or de!ected to an illegal purpose( orthat there is a #astage of public funds through the enforceent of an

invalid or unconstitutional la#.20

5he Court retains discretion #hether ornot to allo# a ta,payers suit.2@

In the case of a legislator or member of 6ongress( an act of theE,ecutive that injures the institution of Congress causes a derivativebut nonetheless substantial injury that can be Fuestioned bylegislators. eber of the :ouse of 4epresentatives has standing toaintain inviolate the prerogatives( po#ers and privileges vested bythe Constitution in his oBce.29

n organizationay be granted standing to assert the rights of itsebers(2/but the ere invocation by the Integrated (ar of thePhilippines or an" member of the legal professionof the duty to

preserve the rule of la# does not suBce to clothe it #ith standing.2=

s regards a local go$ernment unit&$3L'( it can see+ relief in order toprotect or vindicate an interest of its o#n( and of the other $3Ls.2?

Intervenors( ean#hile( ay be given legal standing upon sho#ing offacts that satisfy the reFuireents of the la# authori;ingintervention(22such as a legal interest in the atter in litigation( or inthe success of either of the parties.

In any case( the Court has discretion to rela, the proceduraltechnicality on locus standi( given the liberal attitude it has e,ercised(highlighted in the case of Da$id $& ,acapagal-.rro"o(28#here

technicalities of procedure #ere brushed aside( the constitutionalissues raised being of paraount public interest or of transcendentaliportance deserving the attention of the Court in vie# of theirseriousness( novelty and #eight as precedents.815he Courts

forbearing stance on locus standion issues involving constitutionalissues has for its purpose the protection of fundaental rights.

In not a fe# cases( the Court( in +eeping #ith its duty under theConstitution to deterine #hether the other branches of governenthave +ept theselves #ithin the liits of the Constitution and the la#sand have not abused the discretion given the( has brushed asidetechnical rules of procedure.86

In the petitions at bar( petitioners Province of North Cotabato&3.4.

No. 62@/86' Province of


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by respondents of the publics constitutional right to be infored of the"O)D( as #ell as on a genuine legal interest in the atter inlitigation( or in the success or failure of either of the parties. :e thuspossesses the reFuisite standing as an intervenor.

With respect to Intervenors R+, Eias Lo!e@( as a forercongressan of the @rddistrict of Davao City( a ta,payer and aeber of the agobo tribeK Carlo . 3oe;( et al.( as ebers of theIP Pala#an chapter( citi;ens and ta,payersK$arino Ri6ao( asta,payer( resident and eber of the Sangguniang Panlungsodof

Cotabato CityK and =isin B+'ani( as ta,payer( they failed to allegeany proper legal interest in the present petitions. >ust the sae( theCourt e,ercises its discretion to rela, the procedural technicalityon locus standigiven the paraount public interest in the issues athand.

Intervening respondents $+si# $+ti5%ectora $ove#ent forPeace an6 "eveo!#ent( an advocacy group for justice and theattainent of peace and prosperity in "usli "indanaoK and $+si#Le7a Assistance )o+n6ation Inc.&a non)governent organi;ationof "usli la#yers( allege that they stand to be bene


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present petitions are not conustice rteio Panganiban in Sanlakas $& Re"es619in #hichhe stated that the doctrine of Acapable of repetition yet evadingrevie#A can override ootness( Aprovided the party raising it in aproper case has been andJor continue to be prejudiced or daaged asa direct result of their issuance.A 5hey contend that the Court usthave jurisdiction over the subject atter for the doctrine to be invo+ed.

5he present petitions all contain prayers for Prohibition over #hich thisCourt e,ercises original jurisdiction. While 3.4. No. 62@28@ &City ofIligan v. 34P' is a petition for Injunction and Declaratory 4elief( theCourt #ill treat it as one for Prohibition as it has far reachingiplications and raises Fuestions that need to be resolved. 61/t all

events( the Court has jurisdiction over ost if not the rest of thepetitions.

Indeed( the present petitions a-ord a proper venue for the Court toagain apply the doctrine iediately referred to as #hat it had done in

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a nuber of landar+ cases.61=5here is a reasonable e,pectation thatpetitioners( particularly the Provinces of North Cotabato( aboangadel Norte and Sultan 7udarat( the Cities of aboanga( Iligan andIsabela( and the "unicipality of $inaon( #ill again be subjected to thesae proble in the future as respondents actions are capable ofrepetition( in another or any for.

It is #ith respect to the prayers for "andaus that the petitions havebecoe oot( respondents having( by Copliance of ugust ?( 0112(provided this Court and petitioners #ith oBcial copies of the


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estate transactions entered in the 4egister of Deeds(66=the need foradeFuate notice to the public of the various la#s(66?the civil serviceeligibility of a public eployee(662the proper anageent of 3SISfunds allegedly used to grant loans to public oBcials( 668the recovery ofthe "arcoses alleged ill)gotten #ealth(601and the identity of party)listnoinees(606aong others( are atters of publicconcern. 4ndoubtedl"# the MOA-AD subject of the present casesis of public concern# in$ol$ing as it does the sovereignty andterritorial integrity of the tate# which directl" a8ects the li$es ofthe public at large&

"atters of public concern covered by the right to inforation includesteps and negotiations leading to the consuation of the contract. Innot distinguishing as to the e,ecutory nature or coercial characterof agreeents( the Court has categorically ruled

, , , 5he right to inforation Acontemplates inclusion ofnegotiations leading to the consummation of thetransaction&A Certainly( a consuated contract is not areFuireent for the e,ercise of the right to inforation.Other#ise( the people can never e,ercise the right if no contractis consuated( and if one is consuated( it ay be too latefor the public to e,pose its defects.

4eFuiring a consuated contract #ill +eep the public in thedar+ until the contract( #hich ay be grossly disadvantageousto the governent or even illegal( becoes fait accompli. 5hisnegates the State policy of full transparency on atters ofpublic concern( a situation #hich the fraers of the Constitutioncould not have intended. Such a reFuireent #ill prevent theciti;enry fro participating in the public discussion ofanyproposedcontract( e-ectively truncating a basic rightenshrined in the ill of 4ights. We can allo# neither aneasculation of a constitutional right( nor a retreat by the Stateof its avo#ed Apolicy of full disclosure of all its transactionsinvolving public interest.A600&Ephasis and italics in the original'

Intended as a Asplendid s"mmetr"A60@to the right to inforation underthe ill of 4ights is the policy of public disclosure under Section 02(rticle II of the Constitution reading

Sec. 02. Subject to reasonable conditions prescribed by la#( theState adopts and ipleents a policy of full public disclosure ofall its transactions involving public interest.609

5he policy of full public disclosure enunciated in above)Fuoted Section02 complementsthe right of access to inforation on atters of publicconcern found in the ill of 4ights. 5he right to inforation guaranteesthe right of the people to deand inforation( #hile Section 02recogni;es the duty of oBcialdo to give inforation even if nobodydeands.60/

5he policy of public disclosure establishes a concrete ethical principlefor the conduct of public a-airs in a genuinely open deocracy( #iththe peoples right to +no# as the centerpiece. It is a andate of theState to be accountable by follo#ing such policy.60=5hese provisionsare vital to the e,ercise of the freedo of e,pression and essential tohold public oBcials at all ties accountable to the people.60?

Whether Section 02 is self)e,ecutory( the records of the deliberationsof the Constitutional Coission so disclose

"4. SL4E. nd since this is not self)e,ecutory( this policy #illnot be enunciated or #ill not be in force and e-ect until after

Congress shall have provided it.

"4. OP$E. I e,pect it to in!uence the cliate of public ethicsiediately but( of course( the ipleenting la# #ill have tobe enacted by Congress( "r. Presiding OBcer.602

5he follo#ing discourse( after Coissioner :ilario Davide( >r.( soughtclari


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the safeguards on national interest are odi


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Cear,& E.O. No. conte#!ates not +st the con6+ct of a!ebiscite to eect+ate ;contin+in7; cons+tations& contrar, tores!on6ents !osition that !ebiscite is ;#ore than s+Dcientcons+tation.A6@=

%urther( E.O. No. @ enuerates the functions and responsibilities of thePPP( one of #hich is to Aconduct regular dialogues #ith the NationalPeace %oru &NP%' and other peace partners to see+ relevantinforation( coents( recoendations as #ell as to renderappropriate and tiely reports on the progress of the coprehensive

peace process.A6@?

E.O. No. @ andates the establishent of the NP% tobe Athe principal foru for the PPP to consult #ith and see+ advicefro the peace advocates( peace partners and concerned sectors ofsociety on both national and local levels( on the ipleentation of thecoprehensive peace process( as #ell as for governent)civil societydialogue and consensus)building on peace agenda and initiatives.A6@2

In ne& E.O. No. estabishes !etitioners ri7ht to be cons+te6on the !eace a7en6a& as a coroar, to the constit+tiona ri7htto infor#ation an6 6iscos+re.

PAPP Es!eron co##itte6 7rave ab+se of 6iscretion

5he PAPP co##itte6 7rave ab+se of 6iscretion #hen he faie6 tocarry out the pertinent consultation. 5he furtive process by #hich the"O)D #as designed and crafted r+ns contrar, to an6 in e'cessof the e7a a+thorit,( and aounts to a #hisical( capricious(oppressive( arbitrary and despotic e,ercise thereof.

5he Court ay not( of course( reFuire the PPP to conduct theconsultation in a particular wa" or manner. It ay( ho#ever( reFuirehi to coply #ith the la# and discharge the functions within theauthorit" grantedby the President.6@8

Petitioners are not claiing a seat at the negotiating table( contrary torespondents retort in justifying the denial of petitioners right to be

consulted. 4espondents stance anifests the anner by #hich theytreat the salient provisions of E.O. No. @ on peoples participation. Suchdisregard of the e,press andate of the President is not uch di-erentfro super


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In 1ina# )r& $& 7on& Pa9o(699the Court held that the above)stated policyand above)Fuoted provision of the $3L apply only to national prograsor projects #hich are to be ipleented in a particular localcounity. ong the progras and projects covered are those thatare critical to the environent and huan ecology including those thatay call for theeviction of a particular group of people residing in thelocality #here these #ill be ipleented.69/The $OA5A" is one!ec+iar !ro7ra# that +ne>+ivoca, an6 +niatera, vestso(nershi! of a vast territor, to the Ban7sa#oro!eo!e(69=(hich co+6 !ervasive, an6 6rastica, res+t to the6ias!ora or 6is!ace#ent of a 7reat n+#ber of inhabitantsfro# their tota environ#ent.

With respect to the indigenous cultural counitiesJindigenouspeoples &ICCsJIPs'( #hose interests are represented herein by petitioner$ope; and are adversely a-ected by the "O)D( the ICCsJIPs have(under the IP4( the right to participate fully at all levels of decision)a+ing in atters #hich ay a-ect their rights( lives anddestinies.69?5he "O)D( an instruent recogni;ing ancestraldoain( failed to justify its non)copliance #ith the clear)cutechaniss ordained in said ct(692 #hich entails( aong other things(the observance of the free and prior infored consent of the ICCsJIPs.

Notably( the IP4 does not grant the E,ecutive Departent or anygovernent agency the po#er to delineate and recogni;e an ancestraldoain clai b" mere agreement or compromise. 5he recognition ofthe ancestral doain is theraison d'etreof the "O)D( #ithout #hichall other stipulations or Aconsensus pointsA necessarily ust fail. Inproceeding to a+e a s#eeping declaration on ancestral doain(#ithout coplying #ith the IP4( #hich is cited as one of the 5O4 ofthe "O)D( res!on6ents cear, transcen6e6 the bo+n6aries oftheir a+thorit,. s it sees( even the heart of the "O)D is stillsubject to necessary changes to the legal frae#or+. While paragraph? on 3overnance suspends the e-ectivity of all provisions reFuiringchanges to the legal frae#or+( such clause is itself invalid( as #ill bediscussed in the follo#ing section.

Indeed( ours is an open society( #ith all the acts of the governentsubject to public scrutiny and available al#ays to public cogni;ance.5his has to be so if the country is to reain deocratic( #ith

sovereignty residing in the people and all governent authorityeanating fro the.698

ON T*E %ECON" %UB%TANTI4E I%%UE

With regard to the provisions of the "O)D( there can be no Fuestionthat they cannot all be accoodated under the present Constitutionand la#s. 4espondents have aditted as uch in the oral arguentsbefore this Court( and the "O)D itself recogni;es the need to aendthe e,isting legal frae#or+ to render e-ective at least soe of its

provisions. 4espondents( nonetheless( counter that the "O)D is freeof any legal inE. Petitioners assert that thepo#ers granted to the >E e,ceed those granted to any local

governent under present la#s( and even go beyond those of thepresent 4"". efore assessing soe of the speciE( ho#ever( it #ould be useful to turn


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a structure of governance based on e,ecutive( legislative(judicial and adinistrative institutions #ith deE. &Ephasis and underscoring supplied'

5he nature of the AassociativeA relationship ay have been intendedto be de


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5hese provisions of the "O indicate( aong other things( that theParties ai#e6 to vest in the B8E the stat+s of anassociatedstate or& at an, rate& a stat+s cose, a!!ro'i#atin7 it.

The conce!t of associationis not reco7ni@e6 +n6er the !resentConstit+tion

No province( city( or unicipality( not even the 4""( is recogni;edunder our la#s as having an AassociativeA relationship #ith the nationalgovernent. Indeed( the concept iplies po#ers that go beyond

anything ever granted by the Constitution to any local or regionalgovernent. It also iplies the recognition of the associated entit" asa state. 5he Constitution( ho#ever( does not conteplate any state inthis jurisdiction other than the Philippine State( uch less does itprovide for a transitory status that ais to prepare any part ofPhilippine territory for independence.

Even the ere concept aniating any of the "O)Ds provisions(therefore( already reFuires for its validity the aendent ofconstitutional provisions( speciE #ithout need of another plebiscite( in contrast to the areas underCategories and entioned earlier in the overvie#. 5hat the present

coponents of the 4"" and the above)entioned unicipalitiesvoted for inclusion therein in 0116( ho#ever( does not render anotherplebiscite unnecessary under the Constitution( precisely because #hatthese areas voted for then #as their inclusion in the 4""(not the >E.

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The $OA5A"& #oreover& (o+6 notco#!, (ith Artice J& %ection 2 of the Constit+tion

since that provision deE ay be regarded as an autonoousregion( the "O)D #ould reFuire an aendent that #ould e,pandthe above)Fuoted provision. 5he ere passage of ne# legislationpursuant to sub)paragraph No. 8 of said constitutional provision #ouldnot suBce( since any ne# la# that ight vest in the >E the po#ersfound in the "O)D ust( itself( coply #ith other provisions of theConstitution. It #ould not do( for instance( to erely pass legislationvesting the >E #ith treaty)a+ing po#er in order to accoodateparagraph 9 of the strand on 4ESOL4CES #hich states A5he >E is free

to enter into any econoic cooperation and trade relations #ith foreigncountries provided( ho#ever( that such relationships andunderstandings do not include aggression against the 3overnent ofthe 4epublic of the Philippines , , ,.A Lnder our constitutional syste(it is only the President #ho has that po#er. Pimentel $& *+ecuti$eSecretar"6//instructs

In our syste of governent( the President( being the head ofstate( is regarded as the soe or7an an6 a+thorit, ine'terna reations an6 is the co+ntr,s soe

re!resentative (ith forei7n nations. s the chief architectof foreign policy( the President acts as the countrys outhpiece#ith respect to international a-airs. :ence( the Presi6ent isveste6 (ith the a+thorit, todeal #ith foreign states andgovernents( e,tend or #ithhold recognition( #aintain6i!o#atic reations& enter into treaties& an6 other(isetransact the b+siness of forei7n reations.In the rea# oftreat,5#a?in7& the Presi6ent has the soe a+thorit, tone7otiate (ith other states. &Ephasis and underscoringsupplied'

Artice II& %ection 22 of the Constit+tion #+st aso be a#en6e6if the sche#e envisione6 in the $OA5A" is to be eecte6 . 5hatconstitutional provision states A5he State recogni;es and prootes therights of indigenous cultural counities #ithin the frae#or+of national unity and developent.A &Lnderscoringsupplied' n associati$earrangeent does not uphold national unity.While there ay be a seblance of unity because of the associativeties bet#een the >E and the national governent( the act of placing aportion of Philippine territory in a status #hich( in internationalpractice( has generally been apreparation for independence( iscertainly not conducive to nationa unity.

esides being irreconcilable #ith the Constitution( the "O)D isalso inconsistent (ith !revaiin7 stat+tor, a(& a#on7 (hichare R.A. No. 0/K6/=or the Organic ct of the 4""( and the IPRA.6/?

Artice J& %ection of the Or7anic Act of the AR$$ is a bar tothe a6o!tion of the 6enition of ;Ban7sa#oro !eo!e;used inthe "O)D. Paragraph 6 on Concepts and Principles states

01
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9' :istorical accounts( including pacts and agreeentsconcerning boundaries entered into by the ICCsJIPsconcerned #ith other ICCsJIPsK

/' Survey plans and s+etch apsK

=' nthropological dataK

?' 3enealogical surveysK

2' Pictures and descriptive histories of traditionalcounal forests and hunting groundsK

8' Pictures and descriptive histories of traditionallandar+s such as ountains( rivers( cree+s( ridges( hills(terraces and the li+eK and

61' Write)ups of naes and places derived fro thenative dialect of the counity.

e' Preparation of "aps. ) On the basis of such investigation andthe


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International la# has long recogni;ed the right to self)deterination ofApeoples(A understood not erely as the entire population of a Statebut also a portion thereof. In considering the Fuestion of #hether thepeople of Tuebec had a right to unilaterally secede fro Canada( theCanadian Supree Court in 4E%E4ENCE 4E SECESSION O%TLEEC6=1had occasion to ac+no#ledge that Athe right of a people toself)deterination is no# so #idely recogni;ed in internationalconventions that the principle has acFuired a status beyondQconvention and is considered a general principle of international la#.A

ong the conventions referred to are the International Covenant onCivil and Political 4ights6=6and the International Covenant onEconoic( Social and Cultural 4ights6=0#hich state( in rticle 6 of bothcovenants( that all peoples( by virtue of the right of self)deterination(Afreely deterine their political status and freely pursue theireconoic( social( and cultural developent.A

5he peoples right to self)deterination should not( ho#ever( beunderstood as e,tending to a unilateral right of secession. distinctionshould be ade bet#een the right of internal and e,ternal self)deterination. 4E%E4ENCE 4E SECESSION O% TLEEC is againinstructive

A&ii' Scope of the 4ight to Self)deterination

60=. 5he recogni;ed sources of international la# establish thatthe ri7ht to sef56eter#ination of a !eo!e is nor#a,f+e6 thro+7h internal sef56eter#ination 5 a !eo!es!+rs+it of its !oitica& econo#ic& socia an6 c+t+ra6eveo!#ent (ithin the fra#e(or? of an e'istin7state. A ri7ht to e!ternalsef56eter#ination (hich inthis case !otentia, ta?es the for# of the assertion of ari7ht to +niatera secessionM arises in on, the #oste'tre#e of cases an6& even then& +n6er caref+, 6ene6circ+#stances., , ,

"!ternalsef56eter#ination can be 6ene6 as in the

foo(in7 state#ent fro# the Declaration on #riendly$elations, supra, as

The estabish#ent of a soverei7n an6 in6e!en6ent %tate&the free association or inte7ration (ith an in6e!en6ent%tate or the e#er7ence into an, other !oitica stat+sfree, 6eter#ine6 b, apeopleconstitute odes ofipleenting the right of self)deterination by that people.&Ephasis added'

60?. The internationa a( !rinci!e of sef56eter#inationhas evove6 (ithin a fra#e(or? of res!ect for theterritoria inte7rit, of e'istin7 states.5he variousinternational docuents that support the e,istence of a peoplesright to self)deterination also contain parallel stateentssupportive of the conclusion that the e,ercise of such a rightust be suBciently liited to prevent threats to an e,istingstates territorial integrity or the stability of relations bet#eensovereign states.

, , , , &Ephasis( italics and underscoring supplied'

5he Canadian Court #ent on to discuss the e,ceptional cases in #hichthe right to e,ternal self)deterination can arise( naely( #here apeople is under colonial rule( is subject to foreign doination ore,ploitation outside a colonial conte,t( and ) less de


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coposed of three jurists to subit an opinion on the preliinary issueof #hether the dispute should( based on international la#( be entirelyleft to the doestic jurisdiction of %inland. 5he Coittee stated therule as follo#s

, , , In the absence of e,press provisions in internationaltreaties( the ri7ht of 6is!osin7 of nationa territor, isessentia, an attrib+te of the soverei7nt, of ever,%tate. Positive Internationa La( 6oes not reco7ni@e theri7ht of nationa 7ro+!s& as s+ch& to se!arate the#sevesfro# the %tate of (hich the, for# !art b, the si#!ee'!ression of a (ish( any ore than it recogni;es the right ofother States to clai such a separation.Genera, s!ea?in7&the 7rant or ref+sa of the ri7ht to a !ortion of its!o!+ation of 6eter#inin7 its o(n !oitica fate b,!ebiscite or b, so#e other #etho6& is& e'c+sive,& anattrib+te of the soverei7nt, of ever, %tate (hich is6enitive, constit+te6. dispute bet#een t#o Statesconcerning such a Fuestion( under noral conditions therefore(bears upon a Fuestion #hich International $a# leaves entirely tothe doestic jurisdiction of one of the States concerned. nyother solution #ould aount to an infringeent of sovereignrights of a State and #ould involve the ris+ of creatingdiBculties and a lac+ of stability #hich #ould not only be

contrary to the very idea ebodied in ter AState(A but #ouldalso endanger the interests of the international counity. Ifthis right is not possessed by a large or sall section of anation( neither can it be held by the State to #hich the nationalgroup #ishes to be attached( nor by any other State. &Ephasisand underscoring supplied'

5he Coittee held that the dispute concerning the aland Islands didnot refer to a Fuestion #hich is left by international la# to the doesticjurisdiction of %inland( thereby applying the e,ception rather than therule elucidated above. Its ground for departing fro the general rule(ho#ever( #as a very narro# one( naely( the aland Islands agitationoriginated at a tie #hen %inland #as undergoing drastic political

transforation. 5he internal situation of %inland #as( according to theCoittee( so abnoral that( for a considerable tie( the conditionsreFuired for the foration of a sovereign State did not e,ist. In theidst of revolution( anarchy( and civil #ar( the legitiacy of the %innish

national governent #as disputed by a large section of the people(and it had( in fact( been chased fro the capital and forcibly preventedfro carrying out its duties. 5he ared caps and the police #eredivided into t#o opposing forces. In light of these circustances(%inland #as not( during the relevant tie period( a Ade


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Indigenous peoples have the right to sef56eter#ination. yvirtue of that right they freely deterine their political statusand freely pursue their econoic( social and culturaldevelopent.

Artice K

Indigenous peoples( in e,ercising their right to self)deterination( have the ri7ht to a+tono#, or sef57overn#entin #atters reatin7 to their interna an6 oca

aairs( as #ell as #ays and eans for


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@. States shall give legal recognition and protection to theselands( territories and resources. Such recognition shall beconducted #ith due respect to the custos( traditions and landtenure systes of the indigenous peoples concerned.

Artice

6. "ilitary activities shall not ta+e place in the lands orterritories of indigenous peoples( unless justi


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near)independent status of an associated state. ll the rightsrecogni;ed in that docuent are FualiE and the Central3overnent( have already violated the "eorandu of Instructions%ro 5he President dated "arch 6( 0116( #hich states that theAnegotiations shall be conducted in accordance #ith , , , theprinciples of the sovereignty and territoria inte7rit,of the 4epublicof the Philippines.A &Ephasis supplied' Establishing an associativerelationship bet#een the >E and the Central 3overnent is( for thereasons already discussed( a preparation for independence( or #orse(an iplicit ac+no#ledgent of an independent status alreadyprevailing.

Even apart fro the above)entioned "eorandu( ho#ever( the"O)D is defective because the suspensive clause is invalid( asdiscussed belo#.

5he authority of the 34P Peace Negotiating Panel to negotiate #ith the"I$% is founded on E.O. No. @( Section /&c'( #hich states that thereshall be established 3overnent Peace Negotiating Panels for

negotiations #ith di-erent rebel groups to be Aappointed by thePresident as her oBcial eissaries to conduct negotiations( dialogues(and face)to)face discussions #ith rebel groups.A 5hese negotiatingpanels are to report to the President( through the PPP on the conductand progress of the negotiations.

It bears noting that the 34P Peace Panel( in e,ploring lasting solutionsto the "oro Proble through its negotiations #ith the "I$%( #as notrestricted by E.O. No. @ only to those options available under the la#sas they presently stand. One of the coponents of a coprehensivepeace process( #hich E.O. No. @ collectively refers to as the APaths toPeace(A is the pursuit of social( econoic( and political refors #hichay reFuire ne# legislation or even constitutional aendents. Sec.

9&a' of E.O. No. @( #hich reiterates Section @&a'( of E.O. No.60/(6=?states

0?

SEC5ION 9 5he Si, Paths to Peace 5he coponents of the ean that she has no such authority In Sanlakas $ *+ecuti$e
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SEC5ION 9. 5he Si, Paths to Peace. ) 5he coponents of thecoprehensive peace process coprise the processes +no#n asthe APaths to PeaceA. 5hese coponent processes areinterrelated and not utually e,clusive( and ust therefore bepursued siultaneously in a coordinated and integrated fashion.5hey shall include( but ay not be liited to( the follo#ing

a. PL4SLI5 O% SOCI$( ECONO"IC ND PO$I5IC$ 4E%O4"S.5his coponent involves the vi7oro+s i#!e#entation ofvario+s !oicies&refor#s& !ro7ra#s an6 !roects ai#e6at a66ressin7 the root ca+ses of interna ar#e6 conicts

an6 socia +nrest. This #a, re>+ire a6#inistrativeaction& ne( e7isation or even constit+tionaa#en6#ents.

, , , , &Ephasis supplied'

5he "O)D( therefore( ay reasonably be perceived as an attept ofrespondents to address( pursuant to this provision of E.O. No. @( theroot causes of the ared con!ict in "indanao. 5he E.O. authori;edthe to Athin+ outside the bo,(A so to spea+. :ence( they negotiatedand #ere set on signing the "O)D that included various social(econoic( and political refors #hich cannot( ho#ever( all beaccoodated #ithin the present legal frae#or+( and #hich thus

#ould reFuire ne# legislation and constitutional aendents.

5he inFuiry on the legality of the Asuspensive clause(A ho#ever( cannotstop here( because it ust be as+ed (hether the Presi6ent hersef#a, e'ercise the !o(er 6ee7ate6 to the GRP Peace Pane+n6er E.O. No. & %ec. KaM.

5he President cannot delegate a po#er that she herself does notpossess. "ay the President( in the course of peace negotiations( agreeto pursue refors that #ould reFuire ne# legislation and constitutionalaendents( or should the refors be restricted only to thosesolutions #hich the present la#s allo#R 5he ans#er to this FuestionreFuires a discussion of the e'tent of the Presi6ents !o(er to

con6+ct !eace ne7otiations.

5hat the authority of the President to conduct peace negotiations #ithrebel groups is not e,plicitly entioned in the Constitution does not

ean that she has no such authority. In Sanlakas $& *+ecuti$eSecretar"(6=2in issue #as the authority of the President to declare astate of rebellion ) an authority #hich is not e,pressly provided for inthe Constitution. 5he Court held thus

AIn her ponencia in ,arcos $& ,anglapus( >ustice Cortes put herthesis into jurisprudence. 5here( the Court( by a sli 2)? argin(upheld the Presidents po#er to forbid the return of her e,iledpredecessor. 5he rationale for the ajoritys ruling rested on thePresidents

. . . +nstate6 resi6+a !o(ers (hich are i#!ie6fro# the 7rant of e'ec+tive !o(er an6 (hicharenecessar, for her to co#!, (ith her 6+ties+n6er the Constit+tion.The !o(ers of thePresi6ent are not i#ite6 to (hat are e'!ress,en+#erate6 in the artice on the E'ec+tive"e!art#ent an6 in scattere6 !rovisions of theConstit+tion.5his is so( not#ithstanding the avo#edintent of the ebers of the Constitutional Coissionof 682= to liit the po#ers of the President as a reactionto the abuses under the regie of "r. "arcos( for theresult #as a liitation of speci


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s the e,perience of nations #hich have siilarly gone throughinternal ared con!ict #ill sho#( ho#ever( peace is rarely attained bysiply pursuing a ilitary solution. Oftenties( changes as far)reaching as a fundaental recon+estion that this is #ere, a !artia res!onse to theTri!oi A7ree#ent itsef an6 to the f+er stan6ar6 ofre7iona a+tono#, conte#!ate6 in that a7ree#ent& an6no( b, state !oic,.6?@&Ephasis supplied'

5he constitutional provisions on autonoy and the statutes enactedpursuant to the have( to the credit of their drafters( been partlysuccessful. Nonetheless( the %ilipino people are still faced #ith the

reality of an on)going con!ict bet#een the 3overnent and the "I$%. Ifthe President is to be e,pected to


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recoending these changes and subits to the proper procedure for ) #hich changes #ould include constitutional aendents( as


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recoending these changes and subits to the proper procedure forconstitutional aendents and revision( her ere recoendationneed not be construed as an unconstitutional act.

5he foregoing discussion focused on the Presidents authority topropose constit+tionaaendents( since her authority to proposene# e7isationis not in controversy. It has been an accepted practicefor Presidents in this jurisdiction to propose ne# legislation. One of theore proinent instances the practice is usually done is in the yearlyState of the Nation ddress of the President to Congress. "oreover( theannual general appropriations bill has al#ays been based on the

budget prepared by the President( #hich ) for all intents and purposes )is a proposal for ne# legislation coing fro the President.6?8

The ;s+s!ensive ca+se; in the $OA5A" vie(e6 in i7ht of theabove56isc+sse6 stan6ar6s

3iven the liited nature of the Presidents authority to proposeconstitutional aendents( she cannot 7+arantee to any third partythat the reFuired aendents #ill eventually be put in place( nor evenbe subitted to a plebiscite. 5he ost she could do is subit theseproposals as recoendations either to Congress or the people( in#ho constituent po#ers are vested.

Paragraph ? on 3overnance of the "O)D states( ho#ever( that allprovisions thereof #hich cannot be reconciled #ith the presentConstitution and la#s Ashall coe into force upon signing of aCoprehensive Copact and upon e-ecting the necessary changes tothe legal frae#or+.A 5his stipulation does not bear the ar+s of asuspensive condition ) de


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p yCongress for incorporation in the aendatory or repealing la#.A

Concerns have been raised that the "O)D #ould have given rise to abinding international la# obligation on the part of the Philippines tochange its Constitution in confority thereto( on the ground that itay be considered either as a binding agreeent under internationalla#( or a unilateral declaration of the Philippine governent to theinternational counity that it #ould grant to the angsaoro peopleall the concessions therein stated. Neither ground urisdiction $oU ccord nesty621&the$oU ccord case' of the Special Court of Sierra $eone is enlightening.5he $oU ccord #as a peace agreeent signed on >uly ?( 6888bet#een the 3overnent of Sierra $eone and the 4evolutionary Lnited

%ront &4L%'( a rebel group #ith #hich the Sierra $eone 3overnent hadbeen in ared con!ict for around eight years at the tie of signing.5here #ere non)contracting signatories to the agreeent( aong#hich #ere the 3overnent of the 5ogolese 4epublic( the EconoicCounity of West frican States( and the LN.

On >anuary 6=( 0110( after a successful negotiation bet#een the LNSecretary)3eneral and the Sierra $eone 3overnent( anotheragreeent #as entered into by the LN and that 3overnent #herebythe Special Court of Sierra $eone #as established. 5he sole purpose ofthe Special Court( an international court( #as to try persons #ho borethe greatest responsibility for serious violations of internationalhuanitarian la# and Sierra $eonean la# coitted in the territory of

Sierra $eone since Noveber @1( 688=.

ong the stipulations of the $oU ccord #as a provision for the fullpardon of the ebers of the 4L% #ith respect to anything done by

p j gsince the con!ict began.

In the $oU ccord case( the Defence argued that the ccord createdan internationa, bin6in7obligation not to prosecute thebene


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! 7 ! 7 ,in 7oo6 faith b, both !arties;. The #ora 7+arantorsass+#e6 no e7a obi7ation.It is recalled that the LN by itsrepresentative appended( presuably for avoidance of doubt(an understanding of the e,tent of the agreeent to beipleented as not including certain international cries.

90. n international agreeent in the nature of a treaty ustcreate rights and obligations regulated by international la# sothat a breach of its ters #ill be a breach deterined underinternational la# #hich #ill also provide principle eans of

enforceent. The Lo# A7ree#ent create6 neither ri7htsnor obi7ations ca!abe of bein7 re7+ate6 b,internationa a(. An a7ree#ent s+ch as the Lo#A7ree#ent (hich brin7s to an en6 an interna ar#e6conict no 6o+bt creates a fact+a sit+ation ofrestoration of !eace that the internationa co##+nit,actin7 thro+7h the %ec+rit, Co+nci #a, ta?e note of.That& ho(ever& (i not convert it to an internationaa7ree#ent (hich creates an obi7ation enforceabe ininternationa& as 6istin7+ishe6 fro# #+nici!a& a(.breach of the ters of such a peace agreeent resulting inresuption of internal ared con!ict or creating a threat topeace in the deterination of the Security Council ay indicate

a reversal of the factual situation of peace to be visited #ithpossible legal conseFuences arising fro the ne# situation ofcon!ict created. Such conseFuences such as action by theSecurity Council pursuant to Chapter GII arise fro the situationand not fro the agreeent( nor fro the obligation iposed byit. Such action cannot be regarded as a reedy for thebreach. A !eace a7ree#ent (hich settesan interna ar#e6 conict cannot be ascribe6 the sa#estat+s as one (hich settes an internationa ar#e6conict (hich& essentia,& #+st be bet(een t(o or #ore(arrin7 %tates. The Lo# A7ree#ent cannot becharacterise6 as an internationa instr+#ent., , ,A&Ephasis( italics and underscoring supplied'

Siilarly( that the "O)D #ould have been signed by representativesof States and international organi;ations not parties to the greeent

ginternational la#.

In another vein( concern has been raised that the "O)D #ouldaount to a unilateral declaration of the Philippine State( bindingunder international la#( that it #ould coply #ith all the stipulationsstated therein( #ith the result that it #ould have to aend itsConstitution accordingly regardless of the true #ill of the people. Citedas authority for this vie# is.ustralia $& 2rance(626also +no#n asthe Nuclear 5ests Case( decided by the International Court of >ustice&IC>'.

In the Nuclear 5ests Case( ustralia challenged before the IC> thelegality of %rances nuclear tests in the South Paci


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strictly unilateral nature of the juridical act by #hich thepronounceent by the State #as ade.

99. Of course( not a +niatera acts i#!, obi7ation b+ta %tate #a, choose to ta?e +! a certain !osition inreation to a !artic+ar #atter (ith the intention of bein7bo+n65the intention is to be ascertaine6 b,inter!retation of the act.When States a+e stateents by#hich their freedo of action is to be liited( a restrictiveinterpretation is called for.

, , , ,

/6. In anno+ncin7 that the 10K series of at#os!herictests (o+6 be the ast& the )rench Govern#entconve,e6 to the (or6 at ar7e& inc+6in7 the A!!icant&its intention eective, to ter#inate these tests. It (asbo+n6 to ass+#e that other %tates #i7ht ta?e note ofthese state#ents an6 re, on their bein7 eective.Thevai6it, of these state#ents an6 their e7aconse>+ences #+st be consi6ere6 (ithin the 7enerafra#e(or? of the sec+rit, of internationa interco+rse(and the con


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reci!rocit,. Since no agreeent of this +ind #as concludedbet#een the Parties( the Chaber


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in Da$id $& ,acapagal-.rro"o.

Contrary to the assertion of respondents that the non)signing of the"O)D and the eventual dissolution of the 34P Peace Panel ootedthe present petitions( the Court


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draft of the "O)D( for judicial copliance and public scrutiny.

In su( the Presidential dviser on the Peace Process coitted graveabuse of discretion #hen he failed to carry out the pertinentconsultation process( as andated by E.O. No. @( 4epublic ct No.?6=1( and 4epublic ct No. 2@?6. 5he furtive process by #hich the"O)D #as designed and crafted runs contrary to and in e,cess ofthe legal authority( and aounts to a #hisical( capricious(oppressive( arbitrary and despotic e,ercise thereof. It illustrates a grossevasion of positive duty and a virtual refusal to perfor the duty

enjoined.

5he "O)D cannot be reconciled #ith the present Constitution andla#s. Not only its speciE( are+nconstit+tiona( for the concept presupposesthat the associated entity is a state and iplies that the sae is on its#ay to independence.

While there is a clause in the "O)D stating that the provisionsthereof inconsistent #ith the present legal frae#or+ #ill not bee-ective until that frae#or+ is aended( the sae does not cure itsdefect. 5he inclusion of provisions in the "O)D establishing an

associative relationship bet#een the >E and the Central 3overnentis( itself( a violation of the "eorandu of Instructions %ro 5hePresident dated "arch 6( 0116( addressed to the governent peacepanel. "oreover( as the clause is #orded( it virtually guarantees thatthe necessary aendents to the Constitution and the la#s #illeventually be put in place. Neither the 34P Peace Panel nor thePresident herself is authori;ed to a+e such a guarantee. Lpholdingsuch an act #ould aount to authori;ing a usurpation of theconstituent po#ers vested only in Congress( a ConstitutionalConvention( or the people theselves through the process of initiative(for the only #ay that the E,ecutive can ensure the outcoe of theaendent process is through an undue in!uence or interference #iththat process.

While the "O)D #ould not aount to an international agreeent orunilateral declaration binding on the Philippines under internationalla#( respondents act of guaranteeing aendents is( by itself(

defective.

W*ERE)ORE( respondents otion to disiss is "ENIE". 5he ainand intervening petitions are 3IGEN DLE COL4SE and hereby34N5ED.

5he "eorandu of greeent on the ncestral Doain spect of the34P)"I$% 5ripoli greeent on Peace of 0116 is declared contrary tola# and the Constitution.

%O OR"ERE".

'555555555555555555555555555555555555555555555555555'

Case No. 2: %+@ette Nicoas vs. Ro#+o

D E C I S I O N

A. Sith v. :on. enjain 5. Po;on( et al.( in C)3.4. SP No. 8?060(dated >anuary 0( 011?.

5he facts are not disputed.

4espondent $ance Corporal &$JCP$' Daniel Sith is a eber of theLnited States red %orces. :e #as charged #ith the crie of rapecoitted against a %ilipina( petitioner herein( soetie on Noveber6( 011/( as follo#s

5he undersigned accused $Cpl. Daniel Sith( Ssgt. Chad rianCarpentier( Doinic Duplantis( 7eith Sil+#ood and 5ioteo $. Soriano(>r. of the crie of 4ape under rticle 0==) of the 4evised Penal Code(

as aended by 4epublic ct 2@/@( upon a coplaint under oath


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Subic ay %reeport one( Olongapo City and #ithin the jurisdiction ofthis :onorable Court( the above)naed accuseds &sic'( being thenebers of the Lnited States "arine Corps( e,cept 5ioteo $.Soriano( >r.( conspiring( confederating together and utually helpingone another( #ith le#d design and by eans of force( threat andintiidation( #ith abuse of superior strength and ta+ing advantage ofthe into,ication of the victi( did then and there #illfully( unla#fullyand feloniously se,ually abuse and have se,ual intercourse #ith orcarnal +no#ledge of one Su;ette S. Nicolas( a 00)year old unarried#oan inside a Stare, Gan #ith Plate No. W7%)6=0( o#ned by

Star#ays 5ravel and 5ours( #ith OBce address at 2811 P. Gictor St.(3uadalupe( "a+ati City( and driven by accused 5ioteo $. Soriano( >r.(against the #ill and consent of the said Su;ette S. Nicolas( to herdaage and prejudice.

CON544* 5O $W.A6

Pursuant to the Gisiting %orces greeent &G%' bet#een the 4epublicof the Philippines and the Lnited States( entered into on %ebruary 61(6882( the Lnited States( at its reFuest( #as granted custody ofdefendant Sith pending the proceedings.

During the trial( #hich #as transferred fro the 4egional 5rial Court

&45C' of abales to the 45C of "a+ati for security reasons( the LnitedStates 3overnent faithfully coplied #ith its underta+ing to bringdefendant Sith to the trial court every tie his presence #asreFuired.

On Deceber 9( 011=( the 45C of "a+ati( follo#ing the end of the trial(rendered its Decision( . S"I5:( also of the LS "arine Corps at the LSS Esse,(this Court hereby


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D5E 60)68)1=D5E Deceber 68( 011=

and the 4oulo)7enney greeent of Deceber 00( 011= #hichstates

5he Departent of %oreign -airs of the 4epublic of the Philippinesand the Ebassy of the Lnited States of erica agree that( inaccordance #ith the Gisiting %orces greeent signed bet#een the t#o

nations( upon transfer of $ance Corporal Daniel >. Sith( Lnited States"arine Corps( fro the "a+ati City >ail( he #ill be detained at the LS"3' uilding( L.S. Ebassy Copound in a roo ofappro,iately 61 , 60 sFuare feet. :e #ill be guarded round the cloc+by L.S. ilitary personnel. 5he Philippine police and jail authorities(under the direct supervision of the Philippine Departent of Interiorand $ocal 3overnent &DI$3' #ill have access to the place of detentionto ensure the Lnited States is in copliance #ith the ters of the G%.

5he atter #as brought before the Court of ppeals #hich decided on>anuary 0( 011?( as follo#s

W:E4E%O4E( all the foregoing considered( #e resolved to DIS"ISS the

petition for having becoe oot.

@

:ence( the present actions.

5he petitions #ere heard on oral arguents on Septeber 68( 0112(after #hich the parties subitted their eoranda.

Petitioners contend that the Philippines should have custody ofdefendant $JCP$ Sith because(


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p

5he provision is thus designed to ensure that any agreeent allo#ingthe presence of foreign ilitary bases( troops or facilities in Philippineterritory shall be eFually binding on the Philippines and the foreignsovereign State involved. 5he idea is to prevent a recurrence of thesituation in #hich the ters and conditions governing the presence offoreign ared forces in our territory #ere binding upon us but not uponthe foreign State.

pplying the provision to the situation involved in these cases( theFuestion is #hether or not the presence of LS red %orces inPhilippine territory pursuant to the G% is allo#ed Aunder a treaty dulyconcurred in by the Senate ,,, and recogni;ed as a treaty by the othercontracting State.A

5his Court


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rticle II. In order ore e-ectively to achieve the objective of this5reaty( the Parties separately and jointly by self)help and utual aid#ill aintain and develop their individual and collective capacity toresist ared attac+.

rticle III. 5he Parties( through their %oreign "inisters or their deputies(#ill consult together fro tie to tie regarding the ipleentation ofthis 5reaty and #henever in the opinion of either of the the territorial

integrity( political independence or security of either of the Parties isthreatened by e,ternal ared attac+ in the Paciohn %oster Dulles

&Sgd.' 5o Connally

&Sgd.' le,ander Wiley2

Clearly( therefore( joint 4P)LS ilitary e,ercises for the purpose ofdeveloping the capability to resist an ared attac+ fall sFuarely underthe provisions of the 4P)LS "utual Defense 5reaty. 5he G%( #hich isthe instruent agreed upon to provide for the joint 4P)LS ilitary

e,ercises( is siply an ipleenting agreeent to the ain 4P)LS"ilitary Defense 5reaty. 5he Preable of the G% states

96

5he 3overnent of the Lnited States of erica and the 3overnentof the 4epublic of the Philippines(

5he G% provides that in cases of o-enses coitted by the ebersof the LS red %orces in the Philippines( the follo#ing rules apply
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4eaBring their faith in the purposes and principles of the Charter ofthe Lnited Nations and their desire to strengthen international andregional security in the Paci


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5he rule in international la# is that a foreign ared forces allo#ed toenter ones territory is iune fro local jurisdiction( e,cept to thee,tent agreed upon. 5he Status of %orces greeents involving foreignilitary units around the #orld vary in ters and conditions( accordingto the situation of the parties involved( and re!ect their bargainingpo#er. ut the principle reains( i.e.( the receiving State can e,ercisejurisdiction over the forces of the sending State only to the e,tentagreed upon by the parties.60

s a result( the situation involved is not one in #hich the po#er of thisCourt to adopt rules of procedure is curtailed or violated( but ratherone in #hich( as is norally encountered around the #orld( the la#s&including rules of procedure' of one State do not e,tend or apply Xe,cept to the e,tent agreed upon X to subjects of another State due tothe recognition of e,traterritorial iunity given to such bodies asvisiting foreign ared forces.

Nothing in the Constitution prohibits such agreeents recogni;ingiunity fro jurisdiction or soe aspects of jurisdiction &such ascustody'( in relation to long)recogni;ed subjects of such iunity li+e:eads of State( diploats and ebers of the ared forces

contingents of a foreign State allo#ed to enter another Statesterritory. On the contrary( the Constitution states that the Philippinesadopts the generally accepted principles of international la# as part ofthe la# of the land. &rt. II( Sec. 0'.

pplying( ho#ever( the provisions of G%( the Court urisdiction

, , ,

appropriate Philippines and Lnited States authorities. Lnited Statespersonnel serving sentences in the Philippines shall have the right tovisits and aterial assistance.

It is clear that the parties to the G% recogni;ed the di-erence bet#eencustody during the trial and detention after conviction( because theyprovided for a speciovito 4. Salonga( et al. v. Daniel Sith( et al.'Kand 3.4. No. 6?=000 &agong lyansang "a+abayan *N( et al. v.President 3loria "acapagal)rroyo( et al.'.

5he parties( including the Solicitor 3eneral( are reFuired to subit

#ithin three &@' days a CoentJ"anifestation on the follo#ing points

9@

6. What is the iplication on the 4P)LS Gisiting %orcesgreeent of the recent LS Supree Court decision in >oseErnesto "edellin v 5e,as dated "arch 0/ 0112 to the e-ect

under the Case)abloc+i ct( and thus lac+ legislative ipleentingauthority.
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Ernesto "edellin v. 5e,as( dated "arch 0/( 0112( to the e-ectthat treaty stipulations that are not self)e,ecutory can only beenforced pursuant to legislation to carry the into e-ectK andthat( #hile treaties ay coprise international coitents(they are not doestic la# unless Congress has enactedipleenting statutes or the treaty itself conveys an intentionthat it be Aself)e,ecutoryA and is rati decision are not self)e,ecuting and are not registrable

%inally( the 4P)LS "utual Defense 5reaty #as advised and consented toby the LS Senate on "arch 01( 68/0( as re!ected in the LSCongressional 4ecord( 20nd Congress( Second Session( Gol. 82 X Part 0(pp. 0/89)0/8/.

5he fraers of the Constitution #ere a#are that the application ofinternational la# in doestic courts varies fro country to country.

s Ward N. %erdinandusse states in his 5reatise( DI4EC5 PP$IC5IONO% IN5E4N5ION$ C4I"IN$ $W IN N5ION$ COL45S( soecountries reFuire legislation #hereas others do not.

It #as not the intention of the fraers of the 682? Constitution( inadopting rticle GIII( Sec. 0/( to reFuire the other contracting State toconvert their syste to achieve alignent and parity #ith ours. It #assiply reFuired that the treaty be recogni;ed as a treaty by the othercontracting State. With that( it becoes for both parties a bindinginternational obligation and the enforceent of that obligation is left tothe noral recourse and processes under international la#.

%urtherore( as held by the LS Supree Court in Weinberger v.

4ossi(6@

an e,ecutive agreeent is a AtreatyA #ithin the eaning ofthat #ord in international la# and constitutes enforceable doestic la#vis)M)vis the Lnited States. 5hus( the LS Supree Court in Weinbergerenforced the provisions of the e,ecutive agreeent grantingpreferential eployent to %ilipinos in the LS ases here.

ccordingly( there are three types of treaties in the erican syste

6. rt. II( Sec. 0 treaties X 5hese are advised and consented toby the LS Senate in accordance #ith rt. II( Sec. 0 of the LSConstitution.

0. E,ecutiveXCongressional greeents 5hese are joint

agreeents of the President and Congress and need not besubitted to the Senate.

99

@. Sole E,ecutive greeents. X 5hese are agreeents enteredinto by the President. 5hey are to be subitted to Congress#ithin si,ty &=1' days of rati


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#ithin si,ty &=1' days of rati


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jurisdictions(

4esolved to guarantee lasting respect for and the enforceent ofinternational justice(

:ave agreed as follo#s

P45 6. ES5$IS:"EN5 O% 5:E COL45

rticle 6

5he Court

n International Criinal Court &Athe CourtA' is herebyestablished. It shall be a peranent institution and shall have thepo#er to e,ercise its jurisdiction over persons for the ost seriouscries of international concern( as referred to in this Statute( and shallbe copleentary to national criinal jurisdictions. 5he jurisdictionand functioning of the Court shall be governed by the provisions of thisStatute.

rticle 04elationship of the Court #ith the Lnited Nations

5he Court shall be brought into relationship #ith the LnitedNations through an agreeent to be approved by the ssebly ofStates Parties to this Statute and thereafter concluded by the Presidentof the Court on its behalf.

rticle @Seat of the Court

6. 5he seat of the Court shall be established at 5he :ague in the

Netherlands &Athe host StateA'.

0. 5he Court shall enter into a headFuarters agreeent #ith the

@. 5he Court ay sit else#here( #henever it considers itdesirable( as provided in this Statute.

rticle 9

$egal status and po#ers of the Court

6. 5he Court shall have international legal personality. It shall also

have such legal capacity as ay be necessary for the e,ercise of itsfunctions and the fulL4ISDIC5ION( D"ISSII$I5* ND PP$IC$E $W

rticle /Cries #ithin the jurisdiction of the Court

6. 5he jurisdiction of the Court shall be liited to the ost seriouscries of concern to the international counity as a #hole. 5heCourt has jurisdiction in accordance #ith this Statute #ith respect tothe follo#ing cries

&a' 5he crie of genocideK

&b' Cries against huanityK

&c' War criesK

&d' 5he crie of aggression.

0. 5he Court shall e,ercise jurisdiction over the crie ofaggression once a provision is adopted in accordance #ith articles 606

9=

and 60@ de


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provision shall be consistent #ith the relevant provisions of the Charterof the Lnited Nations.

rticle =3enocide

%or the purpose of this Statute( AgenocideA eans any of thefollo#ing acts coitted #ith intent to destroy( in #hole or in part( anational( ethnical( racial or religious group( as such

&a' 7illing ebers of the groupK

&b' Causing serious bodily or ental har to ebers of thegroupK

&c' Deliberately in!icting on the group conditions of lifecalculated to bring about its physical destruction in #hole or inpartK

&d' Iposing easures intended to prevent births #ithin thegroupK

&e' %orcibly transferring children of the group to anothergroup.

rticle ?Cries against huanity

6. %or the purpose of this Statute( Acrie against huanityAeans any of the follo#ing acts #hen coitted as part of a#idespread or systeatic attac+ directed against any civilianpopulation( #ith +no#ledge of the attac+

&a' "urderK

&b' E,terinationK

&d' Deportation or forcible transfer of populationK

&e' Iprisonent or other severe deprivation of physicalliberty in violation of fundaental rules of international la#K

&f' 5ortureK

&g' 4ape( se,ual slavery( enforced prostitution( forcedpregnancy( enforced sterili;ation( or any other for of se,ual

violence of coparable gravityK

&h' Persecution against any identi


48/64

p gin persons( in particular #oen and childrenK

&d' ADeportation or forcible transfer of populationA eansforced displaceent of the persons concerned by e,pulsion orother coercive acts fro the area in #hich they are la#fullypresent( #ithout grounds peritted under international la#K

&e' A5ortureA eans the intentional in!iction of severe pain or

su-ering( #hether physical or ental( upon a person in thecustody or under the control of the accusedK e,cept that tortureshall not include pain or su-ering arising only fro( inherent inor incidental to( la#ful sanctionsK

&f' A%orced pregnancyA eans the unla#ful con


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&b' Other serious violations of the la#s and custosapplicable in international ared con!ict( #ithin the establishedfrae#or+ of international la#( naely( any of the follo#ingacts

&i' Intentionally directing attac+s against the civilianpopulation as such or against individual civilians notta+ing direct part in hostilitiesK

&ii' Intentionally directing attac+s against civilianobjects( that is( objects #hich are not ilitary objectivesK

&iii' Intentionally directing attac+s against personnel(installations( aterial( units or vehicles involved in ahuanitarian assistance or peace+eeping ission inaccordance #ith the Charter of the Lnited Nations( aslong as they are entitled to the protection given tocivilians or civilian objects under the international la# ofared con!ictK

&iv' Intentionally launching an attac+ in the +no#ledgethat such attac+ #ill cause incidental loss of life or injury

to civilians or daage to civilian objects or #idespread(long)ter and severe daage to the natural environent#hich #ould be clearly e,cessive in relation to theconcrete and direct overall ilitary advantageanticipatedK

&v' ttac+ing or bobarding( by #hatever eans(to#ns( villages( d#ellings or buildings #hich areundefended and #hich are not ilitary objectivesK

&vi' 7illing or #ounding a cobatant #ho( having laiddo#n his ars or having no longer eans of defence( hassurrendered at discretionK

&vii' "a+ing iproper use of a !ag of truce( of the !agor of the ilitary insignia and unifor of the eney or of

&viii' 5he transfer( directly or indirectly( by theOccupying Po#er of parts of its o#n civilian populationinto the territory it occupies( or the deportation ortransfer of all or parts of the population of the occupiedterritory #ithin or outside this territoryK

&i,' Intentionally directing attac+s against buildings

dedicated to religion( education( art( science or charitablepurposes( historic onuents( hospitals and places#here the sic+ and #ounded are collected( provided theyare not ilitary objectivesK

&,' Subjecting persons #ho are in the po#er of anadverse party to physical utilation or to edical orscienti


50/64

&,vi' Pillaging a to#n or place( even #hen ta+en byassaultK

&,vii' Eploying poison or poisoned #eaponsK

&,viii' Eploying asphy,iating( poisonous or othergases( and all analogous liFuids( aterials or devicesK

&,i,' Eploying bullets #hich e,pand or !atten easilyin the huan body( such as bullets #ith a hard envelope#hich does not entirely cover the core or is pierced #ithincisionsK

&,,' Eploying #eapons( projectiles and aterial andethods of #arfare #hich are of a nature to causesuper!uous injury or unnecessary su-ering or #hich areinherently indiscriinate in violation of the internationalla# of ared con!ict( provided that such #eapons(projectiles and aterial and ethods of #arfare are thesubject of a coprehensive prohibition and are includedin an anne, to this Statute( by an aendent in

accordance #ith the relevant provisions set forth inarticles 606 and 60@K

&,,i' Coitting outrages upon personal dignity( inparticular huiliating and degrading treatentK

&,,ii' Coitting rape( se,ual slavery( enforcedprostitution( forced pregnancy( as de


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sporadic acts of violence or other acts of a siilar nature.

&e' Other serious violations of the la#s and custosapplicable in ared con!icts not of an international character(#ithin the established frae#or+ of international la#( naely(any of the follo#ing acts

&i' Intentionally directing attac+s against the civilianpopulation as such or against individual civilians notta+ing direct part in hostilitiesK

&ii' Intentionally directing attac+s against buildings(aterial( edical units and transport( and personnelusing the distinctive ebles of the 3eneva Conventionsin confority #ith international la#K

&iii' Intentionally directing attac+s against personnel(installations( aterial( units or vehicles involved in ahuanitarian assistance or peace+eeping ission inaccordance #ith the Charter of the Lnited Nations( as

long as they are entitled to the protection given tocivilians or civilian objects under the international la# ofared con!ictK

&iv' Intentionally directing attac+s against buildingsdedicated to religion( education( art( science or charitablepurposes( historic onuents( hospitals and places#here the sic+ and #ounded are collected( provided theyare not ilitary objectivesK

&v' Pillaging a to#n or place( even #hen ta+en byassaultK

&vi' Coitting rape( se,ual slavery( enforcedprostitution( forced pregnancy( as de


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rticle 8Eleents of Cries

6. Eleents of Cries shall assist the Court in the interpretationand application of articles =( ? and 2. 5hey shall be adopted by a t#o)thirds ajority of the ebers of the ssebly of States Parties.

0. endents to the Eleents of Cries ay be proposed by

&a' ny State PartyK

&b' 5he judges acting by an absolute ajorityK

&c' 5he Prosecutor.

Such aendents shall be adopted by a t#o)thirds ajority of theebers of the ssebly of States Parties.

@. 5he Eleents of Cries and aendents thereto shall beconsistent #ith this Statute.

rticle 61

Nothing in this Part shall be interpreted as liiting orprejudicing in any #ay e,isting or developing rules of international la#for purposes other than this Statute.

rticle 66>urisdiction ratione teporis

6. 5he Court has jurisdiction only #ith respect to criescoitted after the entry into force of this Statute.

0. If a State becoes a Party to this Statute after its entry intoforce( the Court ay e,ercise its jurisdiction only #ith respect to

rticle 60Preconditions to the e,ercise of jurisdiction

6. State #hich becoes a Party to this Statute thereby acceptsthe jurisdiction of the Court #ith respect to the cries referred to in

article /.

0. In the case of article 6@( paragraph &a' or &c'( the Court aye,ercise its jurisdiction if one or ore of the follo#ing States areParties to this Statute or have accepted the jurisdiction of the Court inaccordance #ith paragraph @

&a' 5he State on the territory of #hich the conduct in Fuestionoccurred or( if the crie #as coitted on board a vessel oraircraft( the State of registration of that vessel or aircraftK

&b' 5he State of #hich the person accused of the crie is anational.

@. If the acceptance of a State #hich is not a Party to this Statuteis reFuired under paragraph 0( that State ay( by declaration lodged#ith the 4egistrar( accept the e,ercise of jurisdiction by the Court #ithrespect to the crie in Fuestion. 5he accepting State shall cooperate#ith the Court #ithout any delay or e,ception in accordance #ith Part8.

rticle 6@E,ercise of jurisdiction

5he Court ay e,ercise its jurisdiction #ith respect to a crie

referred to in article / in accordance #ith the provisions of this Statuteif

&a' situation in #hich one or ore of such cries appears tohave been coitted is referred to the Prosecutor by a StateParty in accordance #ith article 69K

/0

&b' situation in #hich one or ore of such cries appears tohave been coitted is referred to the Prosecutor by theSecurity Council acting under Chapter GII of the Charter of theLnited NationsK or

9. If the Pre)5rial Chaber( upon e,aination of the reFuest andthe supporting aterial( considers that there is a reasonable basis toproceed #ith an investigation and that the case appears to fall #ithin


53/64

Lnited NationsK or

&c' 5he Prosecutor has initiated an investigation in respect ofsuch a crie in accordance #ith article 6/.

rticle 69

4eferral of a situation by a State Party

6. State Party ay refer to the Prosecutor a situation in #hichone or ore cries #ithin the jurisdiction of the Court appear to havebeen coitted reFuesting the Prosecutor to investigate the situationfor the purpose of deterining #hether one or ore speci


54/64

un#illingness or inability of the State genuinely to prosecuteK

&c' 5he person concerned has already been tried for conduct#hich is the subject of the coplaint( and a trial by the Court isnot peritted under article 01( paragraph @K

&d' 5he case is not of suBcient gravity to justify further actionby the Court.

0. In order to deterine un#illingness in a particular case( theCourt shall consider( having regard to the principles of due processrecogni;ed by international la#( #hether one or ore of the follo#inge,ist( as applicable

&a' 5he proceedings #ere or are being underta+en or thenational decision #as ade for the purpose of shielding theperson concerned fro criinal responsibility for cries #ithinthe jurisdiction of the Court referred to in article /K

&b' 5here has been an unjusti


55/64

?. State #hich has challenged a ruling of the Pre)5rial Chaberunder this article ay challenge the adissibility of a case underarticle 68 on the grounds of additional signi


56/64

( g garticle 6?( defers an investigation( the Prosecutor ay reFuest that therelevant State a+e available to the Prosecutor inforation on theproceedings. 5hat inforation shall( at the reFuest of the Stateconcerned( be con


57/64

,)))))))))))))))))))))))))))))))))))))))))))))),

NICARAGUA 4% UNITE" %TATE% %U$$AR9M ON %EL) "E)ENCEAN" U%E O) )ORCE

Case: Case Concernin7 the $iitar, an6 Para#iitar, Activities

In an6 A7ainst Nicara7+a Nicara7+a vs Unite6 %tatesM ;,erits?: to :>?@&

!icaragua asked the 6ourt to /nd that these acti$ities $iolated

international law&

)acts of the Case:

In >uly 68?8 the 3overnent of President Soo;a collapsed follo#ing

an ared opposition led by the 2renteSandinista de1iberacibn !acional&%S$N' . 5he ne# governent X installed by %S$N X

supportive of the ne# governent changed its attitude #hen(

according to the Lnited States( it found that Nicaragua #as providing

logistical support and #eapons to guerrillas in El Salvador. In pril

6826 it terinated Lnited States aid to Nicaragua and in Septeber

6826( according to Nicaragua( the Lnited States Zdecided to plan and

underta+e activities directed against Nicaragua[.

5he ared opposition to the ne# 3overnent #as conducted ainly

by &6' 2uerza Democratica !icaragAense&%DN'( #hich operated along

the border #ith :onduras( and

&0'.lianza Re$olucionaria Democratica&4DE'( #hich operated along

the border #ith Costa 4ica( &see ap of the region'. Initial LS support

to these groups


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5he Lnited States did not appear before the IC> at the erit stages(

after refusing to accept the IC>s jurisdiction to decide the case. 5he

Lnited States at the jurisdictional phase of the hearing( ho#ever(

stated that it relied on an inherent right of collective self)defence

guaranteed in . /6 of the LN Charter by Zproviding( upon reFuest(

proportionate and appropriate assistance\[ to Costa 4ica( :ondurasand El Salvador in response to Nicaraguas alleged acts aggression

against those countries &paras. 60=( 602'.

S+estions before the Co+rt:

Did the 4nited States breach its customar" international law

obligation B not to inter$ene in the a8airs of another State B

when it trained# armed# equipped and /nanced the contra

forces or encouraged# supported and aided the militar" and

paramilitar" acti$ities against !icaraguaC


obligation B not to use force against another State B when it

directl" attacked !icaragua in :>?5 B :>?@ and when its

acti$ities in bullet point : abo$e resulted in the use of forceC

If so# can the militar" and paramilitar" acti$ities that the 4nited

States undertook in and against !icaragua be justi/ed as

collecti$e self-defenceC

"

!icaraguan territor" and b" acts referred to in bullet point E

abo$eC


obligations B not to $iolate the so$ereignt" of another State# not

to inter$ene in its a8airs# not to use force against another State

and not to interrupt peaceful maritime commerce B when it laid

mines in the internal waters and the territorial sea of

!icaraguaC

IC8 6ecision:5he Lnited States violated custoary international la#

in relation to bullet points 6( 0( 9 and / above. On bullet point @( the

Court found that the Lnited States could not rely on collective self)

defence to justify its use of force against Nicaragua.

Reevant )in6in7s of the Co+rt:

1. The co+rt he6 that the Unite6 %tates breache6 its

c+sto#ar, internationa a( obi7ation not to +se force

a7ainst another %tate: 1M (hen it 6irect, attac?e6 Nicara7+a

in 10- 10-K an6 2M (hen its activities (ith the contra

forces res+te6 in the threat or +se of force &see paras 62?

)016'.

5he Court held that

/2

5he prohibition on the use of force is found in rticle 0&9' of the

LN Charter and in custoary international la#.

each provision of funds by the Lnited States #as ade to set in

otion a particular o-ensive( and that that o-ensive #as

planned by the Lnited States.[ 5he Court held further
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In a controversial


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internal or e,ternal a-airs of other States &see paras 68/( 0@1'.

Lnder rticle /6 of the LN Charter and under CI$ X self)defence

is only available against a use of force that aounts to an

ared attac+;para E::=&

!(< In in the 6ase 6oncerning il Platforms and the ad$isor" opinion

on the 1egal 6onsequences of of the 6onstruction of a Kall in the

ccupied Palestinian erritor" ;hereinafter called the Palestine wall

case= the I6) upheld the de/nition of Garmed attack proposed in the

!icaragua case& In the Palestinian wall case# the attacks from which

Israel was claiming self defence originated from non-State actors&

7owe$er# the 6ourt held that .rticle L:Hs inherent right of self defence

was a$ailable to one State onl" against another State ;para :5>=&

)udges 7iggins# (uergenthal and Mooijmans opposed this narrow $iew&

.rticles on State Responsibilit"# prepared b" the International 1aw6ommission# pro$ided signi/cant guidance as to when acts of non-

State actors ma" be attributed to States& hese articles# together with

recent State practice relating attacks on terrorists operating from

other countries ;see legal opinions surrounding the 4nited States

attack on .fghanistan=# ma" ha$e widened the scope of an armed

attack# and consequentl"# the right of self defence# en$isaged b" the

I6)&

2. The Co+rt he6 that the Unite6 %tates co+6 not +stif, its

#iitar, an6 !ara#iitar, activities on the basis of coective

sef56efence.

the t#o fors of self defence( clic+ here'. 5he Lnited States( at

an earlier stage of the proceedings( had asserted that the

Charter itself ac+no#ledges the e,istence of this custoary

international la# right #hen it tal+s of the Zinherent[ right of a

State under rticle /6 of the Charter &para.68@'.

When a State clais that it used force in collective self)defence(

the Court #ould loo+ into t#o aspects

;:= whether the circumstances required for the e+ercise of self-defence

e+isted and

;E= whether the steps taken b" the State# which was acting in self-

defence# corresponds to the requirements of international law ;i&e& did

it compl" with the principles of necessit" and proportionalit"=&

Several criteria ust be et for a State to e,ercise the right of

individual or collective self)defence

&6' State ust have been the victi of an ared attac+K

&0' 5his State ust declare itself as a victi of an ared attac+K N

the assessent #hether an ared attac+ too+ place nor not is done by

the state #ho #as subjected to the attac+. third State cannot

e,ercise a right of collective self)defence based its &the third States'

o#n assessentK and

=1

&@' In the case of collective self)defence X the victi State ust

reFuest for assistance &Zthere is no rule peritting the e,ercise of

collective self)defence in the absence of a reFuest by the State #hich

defence is advanced as a justi


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compilation of pil cases 2013 final (1)

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