Province of North Cotabato vs.

GRP Peace Panel

G.R. No. 183591 October 14, 2008

Overview: The case talks about the validity of the MOA-AD(Memorandum of

Agreement on the Ancestral Domain). There are actually five(5) cases filed by
different entities and persons but technically raises the same issue, so these cases
were consolidated.
1. GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer
to declare unconstitutional and to have the MOA-AD disclosed to the public
and be open for public consultation.
2. GR 183752 by the City of Zamboanga et al on its prayer to declare null and
void said MOA-AD and to exclude the city to the BJE.
3. GR 183893 by the City of Iligan enjoining the respondents from signing the
MOA-AD and additionally impleading Exec. Sec. Ermita.
4. GR 183951 by the Province of Zamboanga del Norte et al, praying to declare
null and void the MOA-AD and without operative effect and those respondents
enjoined from executing the MOA-AD.
5. GR 183692 by Maceda, Binay and Pimentel III, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and
executing the MOA-AD and or any other agreement derived therefrom or
similar thereto, and nullifying the MOA-AD for being unconstitutional and
illegal and impleading Iqbal.
The MOA-AD:
The MOA-AD is a result of various agreements entered into by and between
the government and the MILF starting in 1996; then in 1997, they signed the
Agreement on General Cessation of Hostilities; and the following year, they signed
the General Framework of Agreement of Intent on August 27, 1998. However, in
1999 and in the early of 2000, the MILF attacked a number of municipalities in
Central Mindanao. In March 2000, they took the hall of Kauswagan, Lanao del Norte;
hence, then Pres. Estrada declared an all-out war-which tolled the peace
negotiation. It was when then Pres. Arroyo assumed office, when the negotiation
regarding peace in Mindanao continued. MILF was hesitant; however, this
negotiation proceeded when the government of Malaysia interceded. Formal peace
talks resumed and MILF suspended all its military actions. The Tripoli Agreement in
2001 lead to the ceasefire between the parties. After the death of MILF Chairman
Hashim and Iqbal took over his position, the crafting of MOA-AD in its final form was
born.
The body is divided into concepts and principles, territory, resources, and
governance.
Embodied in concepts and principles, is the definition of Bangsamoro as all
indigenous peoples of Mindanao and its adjacent islands. These people have the

right to self- governance of their Bangsamoro homeland to which they have

exclusive ownership by virtue of their prior rights of occupation in the land. The
MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with
defined territory and with a system of government having entered into treaties of
amity and commerce with foreign nations." It 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.
As defined in the territory of the MOA-AD, the BJE shall embrace the
Mindanao-Sulu-Palawan geographic region, involving the present ARMM, parts of
which are those which voted in the inclusion to ARMM in a plebiscite. The territory is
divided into two categories, A which will be subject to plebiscite not later than 12
mos. after the signing and B which will be subject to plebiscite 25 years from the
signing of another separate agreement. Embodied in the MOA-AD that the BJE shall
have jurisdiction over the internal waters-15kms from the coastline of the BJE
territory; they shall also have "territorial waters," which shall stretch beyond the BJE
internal waters up to the baselines of the Republic of the Philippines (RP) south east
and south west of mainland Mindanao; and that within these territorial waters, the
BJE and the government shall exercise joint jurisdiction, authority and management
over all natural resources. There will also be sharing of minerals in the territorial
waters; but no provision on the internal waters.
Included in the resources is the stipulation 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, as well as environmental
cooperation agreements, but not to include aggression in the GRP. The external
defense of the BJE is to remain the duty and obligation of the government. The BJE
shall have participation in international meetings and events" like those of the
ASEAN and the specialized agencies of the UN. They are to be entitled to participate
in Philippine official missions and delegations for the negotiation of border
agreements or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain. The BJE shall also have the right to
explore its resources and that the sharing between the Central Government and the
BJE of total production pertaining to natural resources is to be 75:25 in favor of the
BJE. And they shall have the right to cancel or modify concessions and TLAs.
And lastly in the governance, the MOA-AD claims that the relationship
between the GRP and MILF is associative i.e. characterized by shared authority and
responsibility. This structure of governance shall be further discussed in the
Comprehensive Compact, a stipulation which was highly contested before the court.
The BJE shall also be given the right to build, develop and maintain its own
institutions, the details of which shall be discussed in the comprehensive compact
as well.

The MOA-AD is scheduled to be signed by the Government of the Republic of

the Philippines and the MILF on August 5, 2008. Invoking the right to information on
matters of public concern, the petitioners seek to compel respondents to disclose
and furnish them the complete and official copies of the MOA-AD and to prohibit the
signing of the MOA-AD and the holding of public consultation thereon. They also
pray that the MOA-AD be declared unconstitutional.
Issues:
1. WON the petitions have complied with the procedural requirements for the
exercise of judicial review
a. Whether petitioners have locus standi
b. Whether the petitions continue to present a justiciable controversy still ripe
for adjudication
c. Whether petitions have become moot and academic
2. WON respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed
the MOA-AD; and
3. WON the contents of the MOA-AD violated the Constitution and the laws
Ruling:
The SC declared the MOA-AD contrary to law and the Constitution.
1.

As regards the procedural issue, SC upheld that there is indeed a

need for the exercise of judicial review.

The power of judicial review is limited to actual cases or controversy, that is the
court will decline on issues that are hypothetical, feigned problems or mere
academic questions. Related to the requirement of an actual case or controversy is
the requirement of ripeness. The contention of the SolGen is that there is no issue
ripe for adjudication since the MOA-AD is only a proposal and does not automatically
create legally demandable rights and obligations. Such was denied.
Well-settled jurisprudence states that acts made by authority which exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the
Constitution and statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication
exists. When an act of a branch of government is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. This is aside from the fact that concrete acts made under the
MOA-AD are not necessary to render the present controversy ripe and that the law
or act in question as not yet effective does not negate ripeness.

With regards to the locus standi, the court upheld the personalities of the
Province of Cotabato, Province of Zamboanga del norte, City of Iligan, City of
Zamboanga, petitioners in intervention Province of Sultan Kudarat, City of Isabela
and Municipality of Linnamon to have locus standi since it is their LGUs which will be
affected in whole or in part if include within the BJE. Intervenors Franklin Drilon and
Adel Tamano, in alleging their standing as taxpayers, assert that government funds
would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing.
Senator Mar Roxas is also given a standing as an intervenor. And lastly, the
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and
prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a nongovernment organization of Muslim lawyers since they stand to be benefited or
prejudiced in the resolution of the petitions regarding the MOA-AD.
On the contention of mootness of the issue considering the signing of the
MOA-AD has already been suspended and that the President has already disbanded
the GRP, the SC disagrees. The court reiterates that the moot and academic
principle is a general rule only, the exceptions, provided in David v. MacapagalArroyo, that it will decide cases, otherwise moot and academic, if it finds that (a)
there is a grave violation of the Constitution; (b) the situation is of exceptional
character and paramount public interest is involved; (c) the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and
the public; and (d) the case is capable of repetition yet evading review; and that
where there is a voluntary cessation of the activity complained of by the defendant
or doer, it does not divest the court the power to hear and try the case especially
when the plaintiff is seeking for damages or injunctive relief.
Clearly, the suspension of the signing of the MOA-AD and the disbandment of the
GRP did not render the petitions moot and academic. The MOA-AD is subject to
further legal enactments including possible Constitutional amendments more than
ever provides impetus for the Court to formulate controlling principles to guide the
bench, the bar, the public and, in this case, the government and its negotiating
entity.
At all events, the Court has jurisdiction over most if not the rest of the petitions.
There is a reasonable expectation that petitioners will again be subjected to the
same problem in the future as respondents' actions are capable of repetition, in
another or any form. But with respect to the prayer of Mandamus to the signing of
the MOA-AD, such has become moot and academic considering that parties have
already complied thereat.
2. The SC ruled that the MOA-AD is a matter of public concern,
involving as it does the sovereignty and territorial integrity of the
State, which directly affects the lives of the public at large.

As enshrined in the Constitution, the right to information guarantees the right of

the people to demand information, and integrated therein is the recognition of the
duty of the officials to give information even if nobody demands. The policy of
public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable by following such policy.
These provisions are vital to the exercise of the freedom of expression and essential
to hold public officials at all times accountable to the people.
The idea of a feedback mechanism was also sought for since it is corollary to the
twin rights to information and disclosure. And feedback means not only the conduct
of the plebiscite as per the contention of the respondents. Clearly, what the law
states is the right of the petitioners to be consulted in the peace agenda as corollary
to the constitutional right to information and disclosure. As such, respondent
Esperon committed grave abuse of discretion for failing to carry out 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 thereto. Moreover, he cannot invoke of executive
privilege because he already waived it when he complied with the Courts order to
the unqualified disclosure of the official copies of the final draft of the MOA-AD.
In addition, the LGU petitioners has the right to be involved in matters related to
such peace talks as enshrined in the State policy. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast territory to
the Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment. effect.
3. With regard to the provisions of the MOA-AD, there can be no
question that they cannot be all accommodated under the present
Constitution and laws. Not only its specific provisions but the very
concept underlying them:
Association as the type of relationship governing between the parties.
The parties manifested that in crafting the MOA-AD, the term association was
adapted from the international law. In international law, association happens when
two states of equal power voluntarily establish durable links i.e. the one state, the
associate, delegates certain responsibilities to the other, principal, while
maintaining its international status as state; free association is a middle ground
between integration and independence. The MOA-AD contains many provisions that
are consistent with the international definition of association which fairly would
deduced that the agreement vest into the BJE a status of an associated state, or at
any rate, a status closely approximating it. The court vehemently objects because
the principle of association is not recognized under the present Constitution.

On the recognition of the BJE entity as a state.

The concept implies power beyond what the Constitution can grant to a local
government; even the ARMM do not have such recognition; and the fact is such
concept implies recognition of the associated entity as a state. There is nothing in
the law that contemplate any state within the jurisdiction other than the Philippine
State, much less does it provide for a transitory status that aims to prepare any part
of Philippine territory for independence. The court disagrees with the respondent
that the MOA-AD merely expands the ARMM. BJE is a state in all but name as it
meets the criteria of a state laid down in the Montevideo Convention, namely, a
permanent population, a defined territory, a government, and a capacity to enter
into relations with other states. As such the MOA-AD clearly runs counter to the
national sovereignty and territorial integrity of the Republic.
On the expansion of the territory of the BJE.
The territory included in the BJE includes those areas who voted in the plebiscite
for them to become part of the ARMM. The stipulation of the respondents in the
MOA-AD that these areas need not participate in the plebiscite is in contrary to the
express provision of the Constitution. The law states that that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the votes cast
by the constituent units in a plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting favorably in such plebiscite shall be
included in the autonomous region." Clearly, assuming that the BJE is just an
expansion of the ARMM, it would still run afoul the wordings of the law since those
included in its territory are areas which voted in its inclusion to the ARMM and not to
the BJE.
On the powers vested in the BJE as an entity.
The respondents contend that the powers vested to the BJE in the MOA-AD shall
be within sub-paragraph 9 of sec 20, art. 10 of the constitution and that a mere
passage of a law is necessary in order to vest in the BJE powers included in the
agreement. The Court was not persuaded. SC ruled that such conferment calls for
amendment of the Constitution; otherwise new legislation will not concur with the
Constitution. Take for instance the treaty making power vested to the BJE in the
MOA-AD. The Constitution is clear that only the President has the sole organ and is
the countrys sole representative with foreign nation. Should the BJE be granted
with the authority to negotiate with other states, the former provision must be
amended consequently. Section 22 must also be amendedthe provision of the law
that promotes national unity and development. Because clearly, associative
arrangement of the MOA-AD does not epitomize national unity but rather, of
semblance of unity. The associative ties between the BJE and the national
government, the act of placing a portion of Philippine territory in a status which, in

international practice, has generally been a preparation for independence, is

certainly not conducive to national unity.
On matters of international law.
The Philippines adopts the generally accepted principle of international law as
part of the law of the land. In international law, the right to self-determination has
long been recognized which states that people can freely determine their political
status and freely pursue their economic, social, and cultural development. There are
the internal and external self-determinationinternal, meaning the self-pursuit of
man and the external which takes the form of the assertion of the right to unilateral
secession. This principle of self-determination is viewed with respect accorded to
the territorial integrity of existing states. External self-determination is only afforded
in exceptional cases when there is an actual block in the meaningful exercise of the
right to internal self-determination. International law, as a general rule, subject only
to limited and exceptional cases, recognizes that the right of disposing national
territory is essentially an attribute of the sovereignty of every state.
On matters relative to indigenous people, international law states that
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 selfdetermination; have the right to autonomy or self-government in matters relating to
their internal and local affairs, as well as ways and means for financing their
autonomous functions; have the right to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.
Clearly, there is nothing in the law that required the State to guarantee the
indigenous people their own police and security force; but rather, it shall be the
State, through police officers, that will provide for the protection of the people. With
regards to the autonomy of the indigenous people, the law does not obligate States
to grant indigenous peoples the near-independent status of a state; since it would
impair the territorial integrity or political unity of sovereign and independent states.
On the concept underlying the MOA-AD.
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. The MOA-AD not being a
document that can bind the Philippines under international law notwithstanding,
respondents' almost consummated act of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of discretion. The grave
abuse lies not in the fact that they considered, as a solution to the Moro Problem,
the creation of a state within a state, but in their brazen willingness to guarantee
that Congress and the sovereign Filipino people would give their imprimatur to their

solution. Upholding such an act would amount to authorizing a usurpation of the

constituent powers vested only in Congress, a Constitutional Convention, or the
people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.