Case Digest: GR No.

183591

2/4/2015

3 Comments

Province of North 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, Intervenors Franklin
Drilon and Adel Tamano and Sec. Mar Roxas

-vs-

Ermita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura Administrator National Mapping & Resource
Information Authority and Davide Jr. and respondents in intervention Muslim Multi-Sectoral Movement for
Peace and Development and Muslim Legal Assistance Foundation Inc.,

Facts:

Subject of this case is the Memorandum of Agreement on the Ancestral Domain (MOA-AD) which is scheduled
to be signed by the Government of the Republic of the Philippines and the MILF in August 05, 2008. Five cases
bearing the same subject matter were consolidated by this court namely:-

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 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.

MOA-AD Overview

This is an agreement to be signed by the GRP and the MILF.

Used as reference in the birth of this MOA-AD are the Tripoli Agreement, organic act of ARMM,
IPRA Law, international laws such as ILO Convention 169, the UN Charter etc., and the principle
of Islam i.e compact right entrenchment (law of compact, treaty and order). The body is divided into concepts
and principles, territory, resources, and governance.

MOA DEFINITION

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.

Issues:

1. WON the petitions have complied with the procedural requirements for the exercise of judicial review

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.

On the Procedural Issue

1st issue: 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.

The SC emphasized that the petitions are alleging acts made in violation of their duty or in grave abuse of
discretion. 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.
2.
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 non-government 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. Macapagal-Arroyo, 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.

On the Substantive Issue

2nd Issue: 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 officialdom 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.

Also, it was held that such stipulation in the Constitution is self-executory with reasonable safeguards —the
effectivity of which need not await the passing of a statute. Hence, it is essential to keep open a
continuing dialogue or process of communication between the government and the people. It is
in the interest of the State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will.

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 Court’s 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.

With respect to the ICC/IPPs they also have the right to participate fully at all levels on decisions that would
clearly affect their lives, rights and destinies. The MOA-AD is an instrument recognizing ancestral domain,
hence it should have observed the free and prior informed consent to the ICC/IPPs; but it failed to do
so. More specially noted by the court is the excess in authority exercised by the respondent—
since they allowed delineation and recognition of ancestral domain claim by mere agreement
and compromise; such power cannot be found in IPRA or in any law to the effect.

3rd issue: 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:On matters of the
Constitution.

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 country’s 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 amended—the 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 domestic statutes.

o Provisions contrary to the organic act of ARMM. RA 9054 is a bar to the adoption of the definition of
Bangsamoro people used in the MOA-AD. Said law specifically distinguishes between the Bangsamoro people
and the Tribal peoples that is contrary with the definition of the MOA-AD which includes all indigenous people
of Mindanao.

o Provisions contrary to the IPRA law. Also, the delineation and recognition of the ancestral domain is a clear
departure from the procedure embodied in the IPRA law which ironically is the term of reference of the MOA-
AD.

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-determination—internal, 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 self-determination; 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 basis of the suspensive clause.

o It was contented by the respondents that grave abuse of discretion cannot be had, since the provisions
assailed as unconstitutional shall not take effect until the necessary changes to the legal framework are
effected.

The Court is not persuaded. This suspensive clause runs contrary to Memorandum of Instructions from the
President stating that negotiations shall be conducted in accordance to the territorial integrity of the country—
such was negated by the provision on association incorporated in the MOA-AD. Apart from this, the suspensive
clause was also held invalid because of the delegated power to the GRP Peace panel to advance peace talks even
if it will require new legislation or even constitutional amendments. The legality of the suspensive clause hence
hinges on the query whether the President can exercise such power as delegated by EO No.3 to the GRP Peace
Panel. Well settled is the rule that the President cannot delegate a power that she herself does not possess. The
power of the President to conduct peace negotiations is not explicitly mentioned in the Constitution but is
rather implied from her powers as Chief Executive and Commander-in-chief. As Chief Executive, the President
has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific
duty to prevent and suppress rebellion and lawless violence.

As such, the President is given the leeway to explore, in the course of peace negotiations, solutions that may
require changes to the Constitution for their implementation. At all event, the president may not, of course,
unilaterally implement the solutions that she considers viable; but she may not be prevented from submitting
them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal
procedures for constitutional amendment and revision.
While the President does not possess constituent powers - as those powers may be exercised only by Congress,
a Constitutional Convention, or the people through initiative and referendum - she may submit proposals for
constitutional change to Congress in a manner that does not involve the arrogation of constituent powers.
Clearly, the principle may be inferred that the President - in the course of conducting peace negotiations - may
validly consider implementing even those policies that require changes to the Constitution, but she may not
unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty. The President’s power is limited only to the preservation and defense of the
Constitution but not changing the same but simply recommending proposed amendments or revisions.

o The Court ruled that the suspensive clause is not a suspensive condition but is a term because it is not a
question of whether the necessary changes to the legal framework will take effect; but, when. Hence, the
stipulation is mandatory for the GRP to effect the changes to the legal framework –which changes would
include constitutional amendments. Simply put, the suspensive clause is inconsistent with the limits of the
President's authority to propose constitutional amendments, it being a virtual guarantee that the Constitution
and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus
points" found in the MOA-AD. Hence, it must be struck down as unconstitutional.

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.