October 14, 2008

THE PROVINCE OF NORTH

COTABATO et al.
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP)

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

PETITIONS FILED AGAINST MOA-AD (First petition, July 23, 2008):
Certiorari and Prohibition: are remedies granted by law when any
tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction.
Mandamus: is a remedy granted by law when any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes
another from the use or enjoyment of a right or office to which such
other is entitled.

ISSUANCE OF TRO: August 4, 2008

SUBSTANTIVE ISSUES and RESOLUTIONS:

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

a. YES, for the release of information was only done after the
issuance of TRO by the Supreme Court.

REASONS:

Article III, Section 7
The right of the people to information on matters of
public concern shall be recognized

Article II, Section 28
Subject to reasonable conditions prescribed
by law, the State adopts and implements a policy of
full public disclosure of all its transactions
involving public interest


Does it concern the public?

Yes, since it may affect territorial
integrity. The MOA-AD agreement, upon signing,
will vest territory for the Bangsamoro people.

Is Article III, Section 7 with its splendid symmetry Article
2, Section 28 self-executory?
Yes. The Philippines is a democratic state (the
blessings of independence and democracy under the
rule of law, Preamble).
Democracy rests mainly on the participation
of the people. Information is a requisite
to participate. Information should be
disseminated even without explicit demand
especially when it is a public concern.
Furthermore, the people (through Reps.
mostly) is always entitled to
suggest/recommend. In an agreement
therefore, MOA-AD for this matter, can only
be said to have consulted the public if
and only if it had informed and considered
the suggestions of the people in the
formation of the agreement.

Despite this, however, the respondents
provided copies of the final draft of the
agreement [even though] only upon
request/complaint.

Therefore, the prayer (petition) for
Mandamus is already rendered moot (of no
legal significance).

2. For Certiorari and Prohibition: Do the contents of the MOA-AD
violate the Constitution and the laws?
a. YES, two reasons:

1.) It stipulates an associative relationship of the Central
Government and Bangsamoro Juridical Entity (BJE).
Characterized by shared authority and responsibility.

Association: presupposes pre-independent (in
transition) state and an existing state, if not two
existing states (International Practice).

One of the provisions of the agreement is to allow the
BJE to have an independent capacity to enter into
relations with other states. This is an element of a
state. Thus, BJE will be state-like if signed.

[Though] The State recognizes and promotes the rights
of indigenous cultural communities [it should only be
done] within the framework of national unity and
development (Article II, Section 22)

The recognition of a pre-independent (transition)
state would jeopardize national unity. The
Constitution recognizes only one State The
Philippine State.


2.) It introduces a guarantee for the amendment of the
Constitution upon the signing of the agreement.

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

Article XVII, Section 1 states that Any amendment
to, or revision of, this Constitution may be
proposed by:
(1) The Congress, upon a vote of three-fourths
of all its Members; or
(2) A constitutional convention.

Now, the peace process is an initiative of the
EXECUTIVE through E.O. No. 3 (authority of GRP
Negotiating Panel). Thus, any guarantee secured
through the agreement emanates from the Executive.
The presence of guarantee would mean a usurpation
of power entitled to the legislative
(Article XVII, Section 1). The Executive
(President) can only recommend/propose for an
amendment the discretion of its pursuit still
lies within the legislative. In other words, there
should be no guarantee for amendment coming from
the executive.

Therefore, there is an excessive use of
jurisdiction/power.

Respondents' act of guaranteeing amendments is, by
itself, already a constitutional violation that
renders the MOA-AD fatally defective.

Therefore, petition for Certiorari and Prohibition is
granted.


Constitutional Issues: Definition of a State (from
Isagani Cruz), Separation of Powers, Self-executory
nature of the right to information.