1. PROVINCE of NORTH COTABATO vs.

GRP
RIGHT TO SELF-DETERMINATION
Subject: Memorandum of Agreement on the Ancestral Domain Aspect of the
GRP-MILF Tripoli Agreement on Peace of 2001

the commitment of the parties to pursue peace negotiations, protect

and respect human rights, negotiate with sincerity in the resolution
and pacific settlement of the conflict, and refrain from the use of threat
or force to attain undue advantage while the peace negotiations on the
substantive agenda are on-going.

Tripoli Agreeement contains the basic principles and agenda on the

following aspects of the negotiation: Security Aspect, Rehabilitation
Aspect, and Ancestral Domain Aspect.

The MOA-AD includes the generic category of compact rights

entrenchment emanating from the regime of dar-ul-muahada (or
territory under compact) and dar-ul-sulh (or territory under peace
agreement) that partakes the nature of a treaty device.

The MOA-AD refer the Bangsamoro homeland, the ownership of

which is vested exclusively in the Bangsamoro people by virtue of their
prior rights of occupation.Both parties to the MOA-AD acknowledge
that ancestral domain does not form part of the public domain.

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

The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have
the option to establish trade missions in those countries

The MOA-AD describes the relationship of the Central Government and

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

ISSUES:
1. Whether respondent Government of the Republic of the Philippines Peace
Panel committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it negotiated and initiated the MOA vis--vis ISSUES Nos.2
and 3;

2. Whether there is a violation of the peoples right to information on

matters of public concern (1987 Constitution, Article III, Sec. 7) under a state
policy of full disclosure of all its transactions involving public interest (1987
Constitution, Article II, Sec. 28) including public consultation under Republic
Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules
of Civil Procedure is an appropriate remedy;

3. Whether by signing the MOA, the Government of the Republic of the

Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not recognized
by law;
b) to revise or amend the Constitution and existing laws to conform to the
MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front
for ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS
PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so
bind the Government of the Republic of the Philippines;
RULING:
1. YES. IN SUM, the Presidential Adviser on the Peace Process committed
grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and
Republic Act No. 8371. The furtive process by which the MOA-AD was
designed and crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof. It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.

2. YES. The MOA-AD is a matter of public concern.

The peoples right to information on matters of public concern under
Sec. 7, Article III of the Constitution is in splendid symmetry with the state
policy of full public disclosure of all its transactions involving public interest
under Sec. 28, Article II of the Constitution. The right to information
guarantees the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if nobody
demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the
same self-executory nature, subject only to reasonable safeguards or

limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern
involving public interest in the highest order. In declaring that the right to
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
Thus, it essential element to keep a continuing dialogue or process of
communication between the government and the people. Corollary to these
twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.

3. NO.
The MOA-AD cannot be reconciled with the present Constitution and
laws. Not only its specific provisions but the very concept underlying them,
namely, the associative relationship envisioned between the GRP and the BJE,
are unconstitutional, for the concept presupposes that the associated entity
is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions
thereof inconsistent with the present legal framework will not be effective
until that framework is amended, the same does not cure its defect. The
inclusion of provisions in the MOA-AD establishing an associative relationship
between the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President dated March 1, 2001,
addressed to the government peace panel. Moreover, as the clause is
worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP
Peace Panel nor the President herself is authorized to make such a guarantee.
Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or
the people themselves through the process of initiative, for the only way that
the Executive can ensure the outcome of the amendment process is through
an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.

as to self determination of" peoples"

basis: International Covenant on Civil and Political Rights[161] and the
International Covenant on Economic, Social and Cultural Rights[162] which
state, in Article 1 of both covenants, that all peoples, by virtue of the right of
self-determination, freely determine their political status and freely pursue
their economic, social, and cultural development.

DISTINCTION: EXTERNAL vs. INTERNAL

a right to internal self-determination a peoples pursuit of its political,

economic, social and cultural development within the framework of an
existing state.

a right to external self-determination (which in this case potentially

takes the form of the assertion of a right to unilateral secession) arises
in only the most extreme of cases and, even then, under carefully
defined circumstances. The establishment of a sovereign and
independent State, the free association or integration with an
independent State or the emergence into any other political status
freely determined by a people constitute modes of implementing the
right of self-determination by that people.

Rule for Bangsamoro as indigenous peoples situated within states: Do not

have a general right to independence or secession from those states
under international law, but they do have rights amounting to what
was discussed above as the right to internal self-determination.

Hence, the present MOA-AD can be renegotiated or another one drawn up

that could contain similar or significantly dissimilar provisions compared to
the original.
2.NICOLAS vs. ROMULO
CONSTITUTIONALITY OF VFA
FACTS:
Herein respondent, Lance Corporal Daniel Smith, is a member of the
United States Armed Forces. He was charged with the crime of rape
committed against a Filipina, Suzette S. Nicolas.
Pursuant to the Visiting Forces Agreement (VFA) between the Republic
of the Philippines and the United States, the United States, at its request, was
granted custody of defendant Smith pending the proceedings.
During the trial, the US Government faithfully complied with its
undertaking to bring defendant Smith to the trial court every time his
presence was required.
Eventually, the Regional Trial Court rendered its Decision, finding
defendant Smith guilty. He shall serve his sentence in the facilities that shall
be agreed upon by appropriate Philippine and United States pursuant to the
VFA. Pending agreement on such facilities, accused is hereby temporarily
committed to the Makati City Jail.
However, defendant was taken out of the Makati jail by a contingent of

Philippine law enforcement agents, and brought to a facility for detention

under the control of the United States government, provided for under new
agreements between the Philippines and the United States, referred to as the
Romulo-Kenney Agreement. This agreement provides that in accordance with
the Visiting Forces Agreement signed, Smith, United States Marine Corps, be
returned to United States military custody at the U.S. Embassy in Manila.
Petitioners contend that the Philippines should have custody of Smith
because if they would allow such transfer of custody of an accused to a
foreign power is to provide for a different rule of procedure for that accused.
The equal protection clause of the Constitution is also violated.

ISSUE: Whether VFA is constitutional as violative in equal protection clause.

HELD:
The equal protection clause is not violated, because there is a
substantial basis for a different treatment of a member of a foreign military
armed forces allowed to enter our territory and all other accused.
The rule in international law is that a foreign armed forces allowed to
enter ones territory is immune from local jurisdiction, except to the extent
agreed upon. The Status of Forces Agreements involving foreign military units
around the world vary in terms and conditions, according to the situation of
the parties involved, and reflect their bargaining power. But the principle
remains, i.e., the receiving State can exercise jurisdiction over the forces of
the sending State only to the extent agreed upon by the parties.
As a result, the situation involved is not one in which the power of this
Court to adopt rules of procedure is curtailed or violated, but rather one in
which, as is normally encountered around the world, the laws (including rules
of procedure) of one State do not extend or apply except to the extent
agreed upon to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed
forces.
Applying, however, the provisions of VFA, the Court finds that there is a
different treatment when it comes to detention as against custody.
It is clear that the parties to the VFA recognized the difference between
custody during the trial and detention after conviction, because they
provided for a specific arrangement to cover detention. And this specific
arrangement clearly states not only that the detention shall be carried out in
facilities agreed on by authorities of both parties, but also that the detention
shall be "by Philippine authorities." Therefore, the Romulo-Kenney
Agreements of December 19 and 22, 2006, which are agreements on the
detention of the accused in the United States Embassy, are not in accord with
the VFA itself because such detention is not "by Philippine authorities."

Respondents should therefore comply with the VFA and negotiate with
representatives of the United States towards an agreement on detention
facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the
VFA.
The Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, is UPHELD as constitutional, but the
Romulo-Kenney Agreements are DECLARED not in accordance with the VFA.
10. Razon v. Tagitis
GENERAL PRINCIPLES OF INTERNATIONAL LAW
Petition for the Writ of Amparo
FACTS:
Engineer Morced N. Tagitis (Tagitis), a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB)
Scholarship Programme, together with Arsimin Kunnong (Kunnong), an IDB
scholar, arrived in Jolo by boat in the early morning of October 31, 2007 from
a seminar in Zamboanga City. They immediately checked-in at ASY Pension
House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the
following day to Zamboanga. When Kunnong returned from this errand,
Tagitis was no longer around. Kunnong looked for Tagitis and even sent a text
message to the latters Manila-based secretary, who advised Kunnong to
simply wait for Tagitis return.

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP

professor of Muslim studies and Tagitis fellow student counselor at the IDB,
reported Tagitis disappearance to the Jolo Police Station. More than a month
later, or on December 28, 2007, the respondent, May Jean Tagitis, through
her attorney-in-fact, filed a Petition for the Writ of Amparo (petition) directed
against petitioners herein. On the same day, the CA immediately issued the
Writ of Amparo and set the case for hearing on January 7, 2008.

On March 7, 2008, the CA issued its decision confirming that the

disappearance of Tagitis was an enforced disappearance under the United
Nations (UN) Declaration on the Protection of All Persons from Enforced
Disappearances. The CA ruled that when military intelligence pinpointed the
investigative arm of the PNP (CIDG) to be involved in the abduction, the
missing-person case qualified as an enforced disappearance. Hence, the CA
extended the privilege of the writ to Tagitis and his family, and directed the
petitioners to exert extraordinary diligence and efforts to protect the life,
liberty and security of Tagitis, with the obligation to provide monthly reports
of their actions to the CA. At the same time, the CA dismissed the petition
against the then respondents from the military, Lt. Gen Alexander Yano and

Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the
military, that was involved.

Hence, this petition.

ISSUE: Whether that the disappearance of Tagitis was an enforced
disappearance.
RULING: yes. In the present case, the petition amply recites in its paragraphs
4 to 11 the circumstances under which Tagitis suddenly dropped out of sight
after engaging in normal activities, and thereafter was nowhere to be found
despite efforts to locate him. The petition alleged, too, under its paragraph 7,
in relation to paragraphs 15 and 16, that according to reliable information,
police operatives were the perpetrators of the abduction. It also clearly
alleged how Tagitis rights to life, liberty and security were violated when he
was forcibly taken and boarded on a motor vehicle by a couple of burly men
believed to be police intelligence operatives, and then taken into custody
by the respondents police intelligence operatives since October 30, 2007,
specifically by the CIDG, PNP Zamboanga City, x x x held against his will in an
earnest attempt of the police to involve and connect [him] with different
terrorist groups. Thus, petition properly pleaded ultimate facts within the
pleaders knowledge about Tagitis disappearance, the participation by agents
of the State in this disappearance, the failure of the State to release Tagitis or
to provide sufficient information about his whereabouts, as well as the actual
violation of his right to liberty.

Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the writ shall cover extralegal
killings and enforced disappearances or threats thereof.[93] We note that
although the writ specifically covers enforced disappearances, this concept
is neither defined nor penalized in this jurisdiction.

Under International Law

From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights. It does not
only violate the right to life, liberty and security of the desaparecido; it affects
their families as well through the denial of their right to information regarding

the circumstances of the disappeared family member. Thus, enforced

disappearances have been said to be a double form of torture, with doubly
paralyzing impact for the victims, as they are kept ignorant of their own
fates, while family members are deprived of knowing the whereabouts of
their detained loved ones and suffer as well the serious economic hardship
and poverty that in most cases follow the disappearance of the household
breadwinner.

Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the Convention,
so that the country is not yet committed to enact any law penalizing enforced
disappearance as a crime. The absence of a specific penal law, however, is
not a stumbling block for action from this Court, as heretofore mentioned;
underlying every enforced disappearance is a violation of the constitutional
rights to life, liberty and security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the
Court is guided, in acting on Amparo cases, by the reality that the Philippines
is a member of the UN, bound by its Charter and by the various conventions
we signed and ratified, particularly the conventions touching on humans
rights. Under the UN Charter, the Philippines pledged to promote universal
respect for, and observance of, human rights and fundamental freedoms for
all without distinctions as to race, sex, language or religion. Although no
universal agreement has been reached on the precise extent of the human
rights and fundamental freedoms guaranteed to all by the Charter, it was
the UN itself that issued the Declaration on enforced disappearance, and this
Declaration states:
Ay act of enforced disappearance is an offence to dignity. It is
condemned as a denial of the purposes of the Charter of the United Nations
and as a grave and flagrant violation of human rights and fundamental
freedoms proclaimed in the Universal Declaration of Human Rights and
reaffirmed and developed in international instruments in this field.

As a matter of human right and fundamental freedom and as a policy matter

made in a UN Declaration, the ban on enforced disappearance cannot but
have its effects on the country, given our own adherence to
generally accepted principles of international law as part of the law

of the land.

*[G]enerally accepted principles of international law, by virtue of the

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

11. VINUYA vs. EXECUTIVE SECRETARY

DIPLOMATIC PROTECTION
Facts:
Petitioners are all members of the MALAYA LOLAS, a non-stock, nonprofit organization registered with the Securities and Exchange Commission,
established for the purpose of providing aid to the victims of rape by
Japanese military forces in the Philippines during the Second World War.
Petitioners narrate that during the Second World War, the Japanese
army attacked villages and systematically raped the women as part of the
destruction of the village. Their communities were bombed, houses were
looted and burned, and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women and held them in
houses or cells, where they were repeatedly raped, beaten, and abused by
Japanese soldiers. As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured physical injuries,
pain and disability, and mental and emotional suffering.[2]
Petitioners claim that since 1998, they have approached the Executive
Department through the DOJ, DFA, and OSG, requesting assistance in filing a
claim against the Japanese officials and military officers who ordered the
establishment of the comfort women stations in the Philippines. However,
officials of the Executive Department declined to assist the petitioners, and
took the position that the individual claims of the comfort women for
compensation had already been fully satisfied by Japans compliance with the
Peace Treaty between the Philippines and Japan.

Issue:

(1) whether repondents committed grave abuse of discretion amounting to

lack or excess of discretion in refusing to espouse their claims for the crimes
against humanity and war crimes committed against them; - NO and

Ruling:
1. From a Domestic Law Perspective, the Executive Department has the
exclusive prerogative to determine whether to espouse petitioners claims
against Japan.
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. In this case, the
Executive Department has already decided that it is to the best interest of
the country to waive all claims of its nationals for reparations against Japan in
the Treaty of Peace of 1951. The wisdom of such decision is not for the courts
to question. Neither could petitioners herein assail the said determination by
the Executive Department via the instant petition for certiorari.
As to Diplomatic Protection
At present, there is no sufficient evidence to establish a general
international obligation for States to exercise diplomatic protection of their
own nationals abroad. Though, perhaps desirable, neither state practice nor
opinio juris has evolved in such a direction. If it is a duty internationally, it is
only a moral and not a legal duty, and there is no means of enforcing its
fulfillment.
We fully agree that rape, sexual slavery, torture, and sexual violence
are morally reprehensible as well as legally prohibited under contemporary
international law. However, petitioners take quite a theoretical leap in
claiming that these proscriptions automatically imply that that the Philippines
is under a non-derogable obligation to prosecute international crimes,
particularly since petitioners do not demand the imputation of individual
criminal liability, but seek to recover monetary reparations from the state of
Japan. Absent the consent of states, an applicable treaty regime, or a
directive by the Security Council, there is no non-derogable duty to institute
proceedings against Japan. Indeed, precisely because of states reluctance to
directly prosecute claims against another state, recent developments support
the modern trend to empower individuals to directly participate in suits
against perpetrators of international crimes. Nonetheless, notwithstanding an
array of General Assembly resolutions calling for the prosecution of crimes
against humanity and the strong policy arguments warranting such a rule,

the practice of states does not yet support the present existence of an
obligation to prosecute international crimes. Of course a customary duty of
prosecution is ideal, but we cannot find enough evidence to reasonably assert
its existence. To the extent that any state practice in this area is widespread,
it is in the practice of granting amnesties, immunity, selective prosecution, or
de facto impunity to those who commit crimes against humanity.
Even the invocation of jus cogens norms and erga omnes obligations
will not alter this analysis. Even if we sidestep the question of whether jus
cogens norms existed in 1951, petitioners have not deigned to show that the
crimes committed by the Japanese army violated jus cogens prohibitions at
the time the Treaty of Peace was signed, or that the duty to prosecute
perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international
law has been used as a legal term describing obligations owed by States
towards the community of states as a whole. For example, in contemporary
international law, from the outlawing of acts of aggression, and of genocide,
as also from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination. Some of
the corresponding rights of protection have entered into the body of general
international law others are conferred by international instruments of a
universal or quasi-universal character.
BLABLABLA: Of course, we greatly sympathize with the cause of
petitioners, and we cannot begin to comprehend the unimaginable horror
they underwent at the hands of the Japanese soldiers. We are also deeply
concerned that, in apparent contravention of fundamental principles of law,
the petitioners appear to be without a remedy to challenge those that have
offended them before appropriate fora. Needless to say, our government
should take the lead in protecting its citizens against violation of their
fundamental human rights. Regrettably, it is not within our power to order
the Executive Department to take up the petitioners cause. Ours is only the
power to urge and exhort the Executive Department to take up petitioners
cause.