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:-

 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.
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.
GR 183893 by the City of Iligan enjoining the respondents from
signing the MOA-AD and additionally impleading Exec. Sec. Ermita.
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.
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. 

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. 
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.