THE PROVINCE OF NORTH COTABATO, duly G.R. No.

183591
HON. ROLANDO E. YEBES, in his capacity as  
represented by GOVERNOR JESUS SACDALAN   Provincial Governor, HON. FRANCIS H. OLVIS, in  
and/or VICE-GOVERNOR EMMANUEL PIÑOL, for Present: his capacity as Vice-Governor and Presiding  
and in his own behalf,    Officer of the Sangguniang Panlalawigan, HON.  
Petitioners, PUNO, CECILIA JALOSJOS CARREON, Congresswoman,  
  QUISUMBING,
1st Congressional District, HON. CESAR G.  
  YNARES-SANTIAGO,
JALOSJOS, Congressman, 3rdCongressional  
- versus -         CARPIO, District, and Members of the Sangguniang  
  AUSTRIA-MARTINEZ,
Panlalawigan of the Province of Zamboanga del  
  CORONA, Norte, namely, HON. SETH FREDERICK P.  
THE GOVERNMENT OF THE REPUBLIC OF THE CARPIO MORALES,
JALOSJOS, HON. FERNANDO R. CABIGON, JR.,  
PHILIPPINES PEACE PANEL ON ANCESTRAL AZCUNA, HON. ULDARICO M. MEJORADA II, HON.  
DOMAIN (GRP), represented by SEC. RODOLFO TINGA, EDIONAR M. ZAMORAS, HON. EDGAR J.  
GARCIA, ATTY. LEAH ARMAMENTO, ATTY. CHICO-NAZARIO,
BAGUIO, HON. CEDRIC L. ADRIATICO,  
SEDFREY CANDELARIA, MARK RYAN SULLIVAN VELASCO,HON. FELIXBERTO
JR., C. BOLANDO, HON. JOSEPH  
and/or GEN. HERMOGENES ESPERON, JR., the NACHURA,BRENDO C. AJERO, HON. NORBIDEIRI B.  
latter in his capacity as the present and duly- REYES, EDDING, HON. ANECITO S. DARUNDAY, HON.  
appointed Presidential Adviser on the Peace LEONARDO-DE
ANGELICA
CASTRO, J. CARREON and HON. LUZVIMINDA  
Process (OPAPP) or the so-called Office of the BRION, E. TORRINO,  
Presidential Adviser on the Peace Process,   Petitioners, G.R. No. 183
Respondents. Promulgated:    
x--------------------------------------------x      
CITY GOVERNMENT OF ZAMBOANGA, as October 14, 2008
- versus -  
represented by HON. CELSO L. LOBREGAT, City      
Mayor of Zamboanga, and in his personal      
capacity as resident of the City of Zamboanga,   THE GOVERNMENT OF THE REPUBLIC OF THE  
Rep. MA. ISABELLE G. CLIMACO, District 1, and   PHILIPPINES PEACE NEGOTIATING PANEL  
Rep. ERICO BASILIO A. FABIAN, District 2, City   [GRP], as represented by HON. RODOLFO C.  
of Zamboanga,   GARCIA and HON. HERMOGENES ESPERON, in  
Petitioners,   his capacity as the Presidential Adviser of Peace  
  G.R. No. 183752
Process,  
    Respondents.  
- versus -   x--------------------------------------------x  
    ERNESTO M. MACEDA, JEJOMAR C. BINAY, and  
    AQUILINO L. PIMENTEL III,  
THE GOVERNMENT OF THE REPUBLIC OF THE   Petitioners,  
PHILIPPINES PEACE NEGOTIATING PANEL      
(GRP), as represented by RODOLFO C. GARCIA,      
LEAH ARMAMENTO, SEDFREY CANDELARIA,   - versus -  
MARK RYAN SULLIVAN and HERMOGENES      
ESPERON, in his capacity as the Presidential      
Adviser on Peace Process,   THE GOVERNMENT OF THE REPUBLIC OF THE  
Respondents.   PHILIPPINES PEACE NEGOTIATING PANEL,  
x--------------------------------------------x   represented by its Chairman RODOLFO C.  
THE CITY OF ILIGAN, duly represented by CITY   GARCIA, and the MORO ISLAMIC LIBERATION  
MAYOR LAWRENCE LLUCH CRUZ,   FRONT PEACE NEGOTIATING PANEL,  
Petitioner,   represented by its Chairman MOHAGHER IQBAL,  
    Respondents.  
    x--------------------------------------------x  
- versus –   FRANKLIN M. DRILON and ADEL ABBAS  
    TAMANO,  
    Petitioners-in-Intervention.  
THE GOVERNMENT OF THE REPUBLIC OF THE   x--------------------------------------------x  
PHILIPPINES PEACE PANEL ON ANCESTRAL   SEN. MANUEL A. ROXAS,  
DOMAIN (GRP), represented by SEC. RODOLFO   Petitioners-in-Intervention.  
GARCIA, ATTY. LEAH ARMAMENTO, ATTY.   x--------------------------------------------x  
SEDFREY CANDELARIA, MARK RYAN SULLIVAN;   MUNICIPALITY OF LINAMON duly represented  
GEN. HERMOGENES ESPERON, JR., in his   by its Municipal Mayor NOEL N. DEANO,  
capacity as the present and duly appointed   Petitioners-in-Intervention,  
Presidential Adviser on the Peace Process; G.R. No. 183893
x--------------------------------------------x  
and/or SEC. EDUARDO ERMITA, in his capacity   THE CITY OF ISABELA, BASILAN PROVINCE,  
as Executive Secretary.   represented by MAYOR CHERRYLYN P. SANTOS-  
Respondents.   AKBAR,  
x--------------------------------------------x   Petitioners-in-Intervention.  
THE PROVINCIAL GOVERNMENT OF   x--------------------------------------------x  
ZAMBOANGA DEL NORTE, as represented by   THE PROVINCE OF SULTAN KUDARAT, rep. by  
 HON. SUHARTO T. MANGUDADATU, in his  
sign a Memorandum of Agreement on the Ancestral Domain
capacity as Provincial Governor and a resident G.R. No. 183962
of the Province of Sultan Kudarat, (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace
Petitioner-in-Intervention.
of 2001 in Kuala Lumpur, Malaysia. 
x-------------------------------------------x
   
RUY ELIAS LOPEZ, for and in his own behalf and
on behalf of Indigenous Peoples in Mindanao          The MILF is a rebel group which was established in
Not Belonging to the MILF, March 1984 when, under the leadership of the late Salamat
Petitioner-in-Intervention.
x--------------------------------------------x Hashim, it splintered from the Moro National Liberation Front
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO (MNLF) then headed by Nur Misuari, on the ground, among
G. AWAT, JOSELITO C. ALISUAG and RICHALEX
G. JAGMIS, as citizens and residents of others, of what Salamat perceived to be the manipulation of
Palawan, the MNLF away from an Islamic basis towards Marxist-Maoist
Petitioners-in-Intervention.
x--------------------------------------------x orientations.[1][1]
MARINO RIDAO and KISIN BUXANI,  
Petitioners-in-Intervention.
x--------------------------------------------x          The signing of the MOA-AD between the GRP and the
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC MILF was not to materialize, however, for upon motion of
(MUSLAF),
Respondent-in-Intervention. petitioners, specifically those who filed their cases before the
x--------------------------------------------x scheduled signing of the MOA-AD, this Court issued a
MUSLIM MULTI-SECTORAL MOVEMENT FOR
PEACE & DEVELOPMENT (MMMPD), Temporary Restraining Order enjoining the GRP from signing
Respondent-in-Intervention. the same. 
x--------------------------------------------x
x----------------------------------------  
- - - - - - - - - - -x          The MOA-AD was preceded by a long process of
 
DECISION negotiation and the concluding of several prior agreements
 
between the two parties beginning in 1996, when the GRP-
CARPIO MORALES, J.: MILF peace negotiations began. On July 18, 1997, the GRP
 
and MILF Peace Panels signed the Agreement on General
         Subject of these consolidated cases is the extent of
Cessation of Hostilities. The following year, they signed the
the powers of the President in pursuing the peace
General Framework of Agreement of Intent on August 27,
process. While the facts surrounding this controversy center on
1998. 
the armed conflict in Mindanao between the government and
 
the Moro Islamic Liberation Front (MILF), the legal issue
         The Solicitor General, who represents respondents,
involved has a bearing on all areas in the country where there
summarizes the MOA-AD by stating that the same contained,
has been a long-standing armed conflict. Yet again, the Court
among others, the commitment of the parties to pursue peace
is tasked to perform a delicate balancing act. It must
negotiations, protect and respect human rights, negotiate with
uncompromisingly delineate the bounds within which the
sincerity in the resolution and pacific settlement of the conflict,
President may lawfully exercise her discretion, but it must do
and refrain from the use of threat or force to attain undue
so in strict adherence to the Constitution, lest its ruling unduly
advantage while the peace negotiations on the substantive
restricts the freedom of action vested by that same
agenda are on-going.[2][2]
Constitution in the Chief Executive precisely to enable her to
 
pursue the peace process effectively. 
         Early on, however, it was evident that there was not
I.    FACTUAL ANTECEDENTS OF THE PETITIONS
  going to be any smooth sailing in the GRP-MILF peace process.
  Towards the end of 1999 up to early 2000, the MILF attacked
         On August 5, 2008, the Government of the Republic of a number of municipalities in Central Mindanao and, in March
the Philippines (GRP) and the MILF, through the Chairpersons 2000, it took control of the town hall of Kauswagan, Lanao del
of their respective peace negotiating panels, were scheduled to
Norte.[3][3] In response, then President Joseph Estrada declared          Meanwhile, then MILF Chairman Salamat Hashim passed
and carried out an “all-out-war” against the MILF.  away on July 13, 2003 and he was replaced by Al Haj Murad,
  who was then the chief peace negotiator of the MILF. Murad’s
         When President Gloria Macapagal-Arroyo assumed position as chief peace negotiator was taken over by Mohagher
office, the military offensive against the MILF was suspended Iqbal.[6][6]
and the government sought a resumption of the peace talks.  
The MILF, according to a leading MILF member, initially          In 2005, several exploratory talks were held between
responded with deep reservation, but when President Arroyo the parties in Kuala Lumpur, eventually leading to the crafting
asked the Government of Malaysia through Prime Minister of the draft MOA-AD in its final form, which, as mentioned,
Mahathir Mohammad to help convince the MILF to return to was set to be signed last August 5, 2008. 
the negotiating table, the MILF convened its Central  
II.   STATEMENT OF THE PROCEEDINGS 
Committee to seriously discuss the matter and, eventually,
 
decided to meet with the GRP.[4][4]  
           Before the Court is what is perhaps the most contentious
         The parties met in Kuala Lumpur on March 24, 2001, “consensus” ever embodied in an instrument – the MOA-AD
with the talks being facilitated by the Malaysian government, which is assailed principally by the present petitions bearing
the parties signing on the same date the Agreement on the docket numbers 183591, 183752, 183893, 183951 and
General Framework for the Resumption of Peace Talks 183962. 
Between the GRP and the MILF. The MILF thereafter  
suspended all its military actions.[5][5]          Commonly impleaded as respondents are the GRP Peace
  Panel on Ancestral Domain[7][7] and the Presidential Adviser on
         Formal peace talks between the parties were held in the Peace Process (PAPP) Hermogenes Esperon, Jr. 
Tripoli, Libya from June 20-22, 2001, the outcome of which  
was the GRP-MILF Tripoli Agreement on Peace (Tripoli On July 23, 2008, the Province of North Cotabato[8]
[8]
Agreement 2001) containing the basic principles and agenda  and Vice-Governor Emmanuel Piñol filed a petition, docketed
on the following aspects of the as G.R. No. 183591, for Mandamus and Prohibition with
negotiation: Security Aspect, Rehabilitation Aspect, Prayer for the Issuance of Writ of Preliminary Injunction and
and Ancestral Domain Aspect. With regard to the Ancestral Temporary Restraining Order.[9][9] Invoking the right to
Domain Aspect, the parties in Tripoli Agreement 2001 simply information on matters of public concern, petitioners seek to
agreed “that the same be discussed further by the Parties in compel respondents to disclose and furnish them the complete
their next meeting.” and official copies of the MOA-AD including its attachments,
  and to prohibit the slated signing of the MOA-AD, pending the
         A second round of peace talks was held in Cyberjaya, disclosure of the contents of the MOA-AD and the holding of a
Malaysia on August 5-7, 2001 which ended with the signing of public consultation thereon. Supplementarily, petitioners pray
the Implementing Guidelines on the Security Aspect of the that the MOA-AD be declared unconstitutional.[10][10]
Tripoli Agreement 2001 leading to a ceasefire status between  
the parties. This was followed by the Implementing Guidelines          This initial petition was followed by another one,
on the Humanitarian Rehabilitation and Development Aspects docketed as G.R. No. 183752, also for Mandamus and
of the Tripoli Agreement 2001, which was signed on May 7, Prohibition[11][11] filed by the City of Zamboanga,[12][12] Mayor
2002 at Putrajaya, Malaysia. Nonetheless, there were many Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico
incidence of violence between government forces and the MILF Basilio Fabian who likewise pray for similar injunctive reliefs.
from 2002 to 2003. Petitioners herein moreover pray that the City of Zamboanga
  be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the Tamano, the City of Isabela[21][21] and Mayor Cherrylyn Santos-
MOA-AD be declared null and void.  Akbar, the Province of Sultan Kudarat[22][22] and Gov. Suharto
  Mangudadatu, the Municipality of Linamon in Lanao del Norte,
By Resolution of August 4, 2008, the Court issued a [23][23]
 Ruy Elias Lopez of Davao City and of the Bagobo
Temporary Restraining Order commanding and directing public tribe, Sangguniang Panlungsod member Marino Ridao and
respondents and their agents to cease and desist from formally businessman Kisin Buxani, both of Cotabato City; and lawyers
signing the MOA-AD. [13][13]
 The Court also required the Solicitor Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
General to submit to the Court and petitioners the official copy Richalex Jagmis, all of Palawan City. The Muslim Legal
of the final draft of the MOA-AD, [14][14]
 to which she complied. Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-
[15][15]
Sectoral Movement for Peace and Development (MMMPD) filed
  their respective Comments-in-Intervention.
Meanwhile, the City of Iligan[16][16] filed a petition for  
Injunction and/or Declaratory Relief, docketed as G.R. No. By subsequent Resolutions, the Court ordered the
183893, praying that respondents be enjoined from signing consolidation of the petitions. Respondents filed Comments on
the MOA-AD or, if the same had already been signed, from the petitions, while some of petitioners submitted their
implementing the same, and that the MOA-AD be declared respective Replies. 
unconstitutional. Petitioners herein additionally implead  
Executive Secretary Eduardo Ermita as respondent.  Respondents, by Manifestation and Motion of August
  19, 2008, stated that the Executive Department shall
The Province of Zamboanga del Norte,[17][17] Governor thoroughly review the MOA-AD and pursue further negotiations
Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia to address the issues hurled against it, and thus moved to
Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members [18][18]
of dismiss the cases. In the succeeding exchange of pleadings,
the Sangguniang Panlalawigan of Zamboanga del Norte filed respondents’ motion was met with vigorous opposition from
on August 15, 2008 a petition for Certiorari, Mandamus and petitioners. 
Prohibition, [19][19]
 docketed as G.R. No. 183951. They  
pray, inter alia, that the MOA-AD be declared null and void and The cases were heard on oral argument on August
without operative effect, and that respondents be enjoined 15, 22 and 29, 2008 that tackled the following principal
from executing the MOA-AD. issues: 
   
1. Whether the petitions have become moot
On August 19, 2008, Ernesto Maceda, Jejomar Binay,
and academic 
and Aquilino Pimentel III filed a petition for Prohibition,[20]  
[20] (i) insofar as the mandamus aspect is
 docketed as G.R. No. 183962, praying for a judgment
concerned, in view of the
prohibiting and permanently enjoining respondents from disclosure of official copies of the
final draft of the Memorandum of
formally signing and executing the MOA-AD and or any other Agreement (MOA); and 
agreement derived therefrom or similar thereto, and nullifying  
(ii)             insofar as
the MOA-AD for being unconstitutional and illegal. Petitioners the prohibition aspect involving the
herein additionally implead as respondent the MILF Peace Local Government Units is
concerned, if it is considered that
Negotiating Panel represented by its Chairman Mohagher consultation has become fait
Iqbal.  accompli with the finalization of
the draft; 
Various parties moved to intervene and were granted  
leave of court to file their petitions-/comments-in-intervention. 2.   Whether the constitutionality and the
legality of the MOA is ripe for
Petitioners-in-Intervention include Senator Manuel A. Roxas, adjudication; 
former Senate President Franklin Drilon and Atty. Adel  
 3.   Whether respondent Government of the
Republic of the Philippines Peace Panel  
committed grave abuse of discretion
The Court, thereafter, ordered the parties to submit
amounting to lack or excess of
jurisdiction when it negotiated and their respective Memoranda. Most of the parties submitted
initiated the MOA vis-à-vis ISSUES Nos.
4 and 5; their memoranda on time. 
   
4.   Whether there is a violation of the III.    OVERVIEW OF THE MOA-AD
people’s right to information on matters  
of public concern (1987 Constitution,
Article III, Sec. 7) under a state policy          As a necessary backdrop to the consideration of the
of full disclosure of all its transactions objections raised in the subject five petitions and six petitions-
involving public interest (1987
Constitution, Article II, Sec. 28) in-intervention against the MOA-AD, as well as the two
including public consultation under comments-in-intervention in favor of the MOA-AD, the Court
Republic Act No. 7160 (LOCAL
GOVERNMENT CODE OF 1991)[;]  takes an overview of the MOA.
   
If it is in the affirmative,
whether prohibition under Rule 65 of          The MOA-AD identifies the Parties to it as the GRP and
the 1997 Rules of Civil Procedure is an the MILF. 
appropriate remedy; 
   
5.   Whether by signing the MOA, the Under the heading “Terms of Reference” (TOR), the
Government of the Republic of the
Philippines would be BINDING itself  MOA-AD includes not only four earlier agreements between the
  GRP and MILF, but also two agreements between the GRP and
a)   to create and recognize the
Bangsamoro Juridical Entity (BJE) the MNLF: the 1976 Tripoli Agreement, and the Final Peace
as a separate state, or a juridical, Agreement on the Implementation of the 1976 Tripoli
territorial or political subdivision
not recognized by law; Agreement, signed on September 2, 1996 during the
 
administration of President Fidel Ramos. 
b)   to revise or amend the Constitution
and existing laws to conform to  
the MOA; 
         The MOA-AD also identifies as TOR two local statutes –
 
c)   to concede to or recognize the the organic act for the Autonomous Region in Muslim
claim of the Moro Islamic
Mindanao (ARMM)[25][25] and the Indigenous Peoples Rights Act
Liberation Front for ancestral
domain in violation of Republic Act (IPRA),[26][26] and several international law instruments – the
No. 8371 (THE INDIGENOUS
ILO Convention No. 169 Concerning Indigenous and Tribal
PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter Peoples in Independent Countries in relation to the UN
VII (DELINEATION, RECOGNITION
OF ANCESTRAL DOMAINS)[;]  Declaration on the Rights of the Indigenous Peoples, and the
  UN Charter, among others.
If in the affirmative, whether the
Executive Branch has the authority to  
so bind the Government of the Republic          The MOA-AD includes as a final TOR the generic
of the Philippines;
  category of “compact rights entrenchment emanating from the
6.   Whether the inclusion/exclusion of the regime of dar-ul-mua’hada (or territory under compact)
Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and and dar-ul-sulh (or territory under peace agreement) that
the Municipality of Linamon, Lanao del partakes the nature of a treaty device.”
Norte in/from the areas covered by the
projected Bangsamoro Homeland is a  
justiciable question; and          During the height of the Muslim Empire, early Muslim
 
7.   Whether desistance from signing the jurists tended to see the world through a simple dichotomy:
MOA derogates any prior valid there was the dar-ul-Islam (the Abode of Islam) and dar-ul-
commitments of the Government of the
Republic of the Philippines.[24][24] harb  (the Abode of War). The first referred to those lands
 ,
where Islamic laws held sway, while the second denoted those
namely,
lands where Muslims were persecuted or where Muslim laws Concep
ts and
were outlawed or ineffective.[27][27] This way of viewing the
Principl
world, however, became more complex through the centuries es,
Territor
as the Islamic world became part of the international y,
community of nations.  Resour
ces,
  and
         As Muslim States entered into treaties with their Govern
ance.
neighbors, even with distant States and inter-governmental
organizations, the classical division of the world into dar-ul-  
A.    CONCEPTS AND PRINCIPLES
Islam and dar-ul-harb eventually lost its meaning. New terms  
were drawn up to describe novel ways of perceiving non-          This strand begins with the statement that it is “the
Muslim territories. For instance, areas like dar-ul- birthright of all Moros and all Indigenous peoples of Mindanao
mua’hada (land of compact) and dar-ul-sulh (land of treaty) to identify themselves and be accepted as ‘Bangsamoros.’” It
referred to countries which, though under a secular regime, defines “Bangsamoro people” as the natives or original
maintained peaceful and cooperative relations with Muslim inhabitants of Mindanao and its adjacent islands including
States, having been bound to each other by treaty or Palawan and the Sulu archipelago at the time of conquest or
agreement. Dar-ul-aman (land of order), on the other hand, colonization,  and their descendants whether mixed or of full
referred to countries which, though not bound by treaty with blood, including their spouses.[30][30]
Muslim States, maintained freedom of religion for Muslims.[28]  
[28]
         Thus, the concept of “Bangsamoro,” as defined in this
  strand of the MOA-AD, includes not only “Moros” as
         It thus appears that the “compact rights entrenchment” traditionally understood even by Muslims,[31][31] but
emanating from the regime of dar-ul-mua’hada and dar-ul- all indigenouspeoples of Mindanao and its adjacent islands.
sulh simply refers to all other agreements between the MILF The MOA-AD adds that the freedom of choice of indigenous
and the Philippine government – the Philippines being the land peoples shall be respected. What this freedom of choice
of compact and peace agreement – that partake of the nature consists in has not been specifically defined.
of a treaty device, “treaty” being broadly defined as “any  
solemn agreement in writing that sets out understandings,          The MOA-AD proceeds to refer to the “Bangsamoro
obligations, and benefits for both parties which provides for a homeland,” the ownership of which is vested exclusively in
framework that elaborates the principles declared in the [MOA- the Bangsamoro people by virtue of their prior rights of
AD].”[29][29] occupation.[32][32] Both parties to the MOA-AD acknowledge
  that ancestral domain does not form part of the public
         The MOA-AD states that the Parties “HAVE AGREED AND domain.[33][33]
ACKNOWLEDGED AS FOLLOWS,” and starts with its main  
body.           The Bangsamoro people are acknowledged as having
  the right to self-governance, which right is said to be rooted on
The
main ancestral territoriality exercised originally under the suzerain
body of authority of their sultanates and the Pat a Pangampong ku
the
MOA- Ranaw. The sultanates were described as states or
AD is “karajaan/kadatuan” resembling a body politic endowed with
divided
into all the elements of a nation-state in the modern sense.[34][34]
four
 
strands
         The MOA-AD thus grounds the right to self-governance Outside of this core, the BJE is to cover other
of the Bangsamoro people on the past suzerain authority of provinces, cities, municipalities and barangays, which are
the sultanates. As gathered, the territory defined as the grouped into two categories, Category A and Category B. Each
Bangsamoro homeland was ruled by several sultanates and, of these areas is to be subjected to a plebiscite to be held on
specifically in the case of the Maranao, by the Pat a different dates, years apart from each other. Thus, Category A
Pangampong ku Ranaw, a confederation of independent areas are to be subjected to a plebiscite not later than twelve
principalities (pangampong) each ruled by datus and sultans, (12) months following the signing of the MOA-AD.[40]
none of whom was supreme over the others.[35][35] [40]
 Category B areas, also called “Special Intervention Areas,”
  on the other hand, are to be subjected to a plebiscite twenty-
         The MOA-AD goes on to describe the Bangsamoro five (25) years from the signing of a separate agreement – the
people as “the ‘First Nation’ with defined territory and with a Comprehensive Compact.[41][41]
system of government having entered into treaties of amity  
and commerce with foreign nations.”           The Parties to the MOA-AD stipulate that the BJE shall
         The term “First Nation” is of Canadian origin referring to have jurisdiction over all natural resources within its
the indigenous peoples of that territory, particularly those “internal waters,” defined as extending fifteen (15) kilometers
known as Indians. In Canada, each of these indigenous from the coastline of the BJE area; [42][42] that the BJE shall also
peoples is equally entitled to be called “First Nation,” hence, all have “territorial waters,” which shall stretch beyond the BJE
of them are usually described collectively by the plural “First internal waters up to the baselines of the Republic of the
Nations.” [36][36]
 To that extent, the MOA-AD, by identifying the Philippines (RP) south east and south west of mainland
Bangsamoro people as “the First Nation” – suggesting its Mindanao; and that within these territorial waters, the BJE and
exclusive entitlement to that designation – departs from the the “Central Government” (used interchangeably with RP) shall
Canadian usage of the term.  exercise jointjurisdiction, authority and management over all
  natural resources.[43][43] Notably, the jurisdiction over
         The MOA-AD then mentions for the first time the the internal waters is not similarly described as “joint.”
“Bangsamoro Juridical Entity” (BJE) to which it grants the  
authority and jurisdiction over the Ancestral Domain and          The MOA-AD further provides for
Ancestral Lands of the Bangsamoro. [37][37]
the sharing of minerals on the territorial waters between the
 
Central Government and the BJE, in favor of the latter, through
 
  production sharing and economic cooperation agreement. [44]
B.    TERRITORY [44]
 The activities which the Parties are allowed to conduct on
 
the territorial  waters are enumerated, among which are the
         The territory of the Bangsamoro homeland is described
exploration and utilization of natural resources, regulation of
as the land mass as well as the maritime, terrestrial, fluvial and
shipping and fishing activities, and the enforcement of police
alluvial domains, including the aerial domain and the
and safety measures.[45][45] There is no similar provision on the
atmospheric space above it, embracing the Mindanao-Sulu-
sharing of minerals and allowed activities with respect to
Palawan geographic region.[38][38]
the internal waters of the BJE. 
   
         More specifically, the core of the BJE is defined as the C.    RESOURCES
 
present geographic area of the ARMM – thus constituting the
         The MOA-AD states that the BJE is free to enter into any
following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi,
economic cooperation and trade relations with foreign
Basilan, and Marawi City. Significantly, this core also includes
countries and shall have the option to establish trade missions
certain municipalities of Lanao del Norte that voted for
in those countries. Such relationships and understandings,
inclusion in the ARMM in the 2001 plebiscite.[39][39]
however, are not to include aggression against the GRP. The
 
BJE may also enter into environmental cooperation
 
agreements. [46][46]
         The MOA-AD binds the Parties to invite a multinational
 
third-party to observe and monitor the implementation of
         The external defense of the BJE is to remain the duty
the Comprehensive Compact. This compact is to embody
and obligation of the Central Government. The Central
the “details for the effective enforcement” and “the
Government is also bound to “take necessary steps to ensure
mechanisms and modalities for the actual implementation” of
the BJE’s participation in international meetings and events”
the MOA-AD. The MOA-AD explicitly provides that the
like those of the ASEAN and the specialized agencies of the
participation of the third party shall not in any way affect the
UN. The BJE is to be entitled to participate in Philippine official
status of the relationship between the Central Government and
missions and delegations for the negotiation of border
the BJE.[52][52]
agreements or protocols for environmental protection and
 
equitable sharing of incomes and revenues involving the The “associative” relationship 
between the Central Government 
bodies of water adjacent to or between the islands forming
and the BJE 
part of the ancestral domain.[47][47]
 
 
The MOA-AD describes the relationship of the Central
         With regard to the right of exploring for, producing, and
Government and the BJE as “associative,” characterized by
obtaining all potential sources of energy, petroleum, fossil fuel,
shared authority and responsibility. And it states that the
mineral oil and natural gas, the jurisdiction and control thereon
structure of governance is to be based on executive,
is to be vested in the BJE “as the party having control within
legislative, judicial, and administrative institutions with defined
its territorial jurisdiction.” This right carries the proviso that, “in
powers and functions in the Comprehensive Compact. 
times of national emergency, when public interest so requires,”
 
the Central Government may, for a fixed period and under
         The MOA-AD provides that its provisions requiring
reasonable terms as may be agreed upon by both Parties,
“amendments to the existing legal framework” shall take effect
assume or direct the operation of such resources.[48][48]
upon signing of the Comprehensive Compact and upon
 
effecting the aforesaid amendments, with due regard to
         The sharing between the Central Government and the
the non-derogation of prior agreements and within the
BJE of total production pertaining to natural resources is to be
stipulated timeframe to be contained in the Comprehensive
75:25 in favor of the BJE.[49][49]
Compact. As will be discussed later, much of the present
         The MOA-AD provides that legitimate grievances of the
controversy hangs on the legality of this provision.
Bangsamoro people arising from any unjust dispossession of
 
their territorial and proprietary rights, customary land tenures,
The BJE is granted the power to build, develop and
or their marginalization shall be acknowledged. Whenever
maintain its own institutions inclusive of civil service, electoral,
restoration is no longer possible, reparation is to be in such
financial and banking, education, legislation, legal, economic,
form as mutually determined by the Parties.[50][50]
police and internal security force, judicial system and
 
correctional institutions, the details of which shall be discussed
         The BJE may modify or cancel the forest concessions,
in the negotiation of the comprehensive compact.
timber licenses, contracts or agreements, mining concessions,
Mineral Production and Sharing Agreements (MPSA), Industrial  

Forest Management Agreements (IFMA), and other land tenure          As stated early on, the MOA-AD was set to be signed on

instruments granted by the Philippine Government, including August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,

those issued by the present ARMM.[51][51] Chairpersons of the Peace Negotiating Panels of the GRP and
the MILF, respectively. Notably, the penultimate paragraph of
 
the MOA-AD identifies the signatories as “the representatives
D.      GOVERNANCE
of the Parties,” meaning the GRP and MILF themselves, and
not merely of the negotiating panels.[53][53]  In addition, the direct adverse effect on the individual challenging it.[59][59] For a
signature page of the MOA-AD states that it is “WITNESSED case to be considered ripe for adjudication, it is a prerequisite
BY” Datuk Othman Bin Abd Razak, Special Adviser to the Prime that something had then been accomplished or performed by
Minister of Malaysia, “ENDORSED BY” Ambassador Sayed either branch before a court may come into the picture, [60]
Elmasry, Adviser to Organization of the Islamic Conference [60]
 and the petitioner must allege the existence of an
(OIC) Secretary General and Special Envoy for Peace Process immediate or threatened injury to itself as a result of the
in Southern Philippines, and SIGNED “IN THE PRESENCE OF” challenged action.[61][61] He must show that he has sustained or
Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and is immediately in danger of sustaining some direct injury as a
Dato’ Seri Utama Dr. Rais Bin Yatim, Minister of Foreign result of the act complained of.[62][62]
Affairs, Malaysia, all of whom were scheduled to sign the  
Agreement last August 5, 2008. The Solicitor General argues that there is no
  justiciable controversy that is ripe for judicial review in the
Annexed to the MOA-AD are two documents present petitions, reasoning that
containing the respective lists cum  maps of the provinces,  
The unsigned MOA-AD is simply a
municipalities, and barangays under Categories A and B earlier
list of consensus points subject to further
mentioned in the discussion on the strand on TERRITORY.  negotiations and legislative enactments as
well as constitutional processes aimed at
 
attaining a final peaceful agreement. Simply
IV.    PROCEDURAL ISSUES 
put, the MOA-AD remains to be a proposal
 
that does not automatically create legally
 
demandable rights and obligations until the
A.      RIPENESS
list of operative acts required have been duly
 
complied with. x x x
 
 
The power of judicial review is limited to actual cases xxxx
 
or controversies.[54][54] Courts decline to issue advisory opinions In the cases at bar, it is respectfully
or to resolve hypothetical or feigned problems, or mere submitted that this Honorable Court has no
authority to pass upon issues based on
academic questions.[55][55] The limitation of the power of judicial hypothetical or feigned constitutional
review to actual cases and controversies defines the role problems or interests with no concrete
bases. Considering
assigned to the judiciary in a tripartite allocation of power, to the preliminary character of the MOA-AD,
assure that the courts will not intrude into areas committed to there are no concrete acts that could
possibly violate petitioners’ and intervenors’
the other branches of government.[56][56] rights since the acts complained of are mere
  contemplated steps toward the formulation
of a final peace agreement. Plainly,
An actual case or controversy involves a conflict of petitioners and intervenors’ perceived injury,
legal rights, an assertion of opposite legal claims, susceptible if at all, is merely imaginary and illusory
apart from being unfounded and based on
of judicial resolution as distinguished from a hypothetical or mere conjectures. (Underscoring supplied)
abstract difference or dispute. There must be a contrariety of  

legal rights that can be interpreted and enforced on the basis  

of existing law and jurisprudence.[57][57] The Court can decide The Solicitor General cites[63][63] the following

the constitutionality of an act or treaty only when a proper provisions of the MOA-AD:
 
case between opposing parties is submitted for judicial TERRITORY
determination.[58][58]  
xxxx
   
2. Toward this end, the Parties
Related to the requirement of an actual case or
enter into the following stipulations:
controversy is the requirement of ripeness. A question is ripe             x x x x
 
for adjudication when the act being challenged has had a
 d. Without derogating
 
from the requirements
of prior agreements, Concrete acts under the MOA-AD are not necessary to
the Government
render the present controversy ripe. In Pimentel, Jr. v. Aguirre,
stipulates to conduct
and deliver, using all [65][65]
 this Court held: 
possible legal
measures, within  
twelve (12) months x x x [B]y the mere enactment of
following the signing the questioned law or the approval of the
of the MOA-AD, a challenged action, the dispute is said to have
plebiscite covering the ripened into a judicial controversy even
areas as enumerated without any other overt act. Indeed, even a
in the list and singular violation of the Constitution and/or
depicted in the map the law is enough to awaken judicial duty.
as Category A  
attached herein (the xxxx
“Annex”). The Annex  
constitutes an integral By the same token, when an act of
part of this framework the President, who in our constitutional
agreement. Toward scheme is a coequal of Congress, is seriously
this end, the Parties alleged to have infringed the Constitution
shall endeavor to and the laws x x x settling the dispute
complete the becomes the duty and the responsibility of
negotiations and the courts.[66][66]
resolve all outstanding  
issues on the  
Comprehensive In Santa Fe Independent School District v. Doe,[67]
Compact within fifteen
(15) months from the
[67]
  the  United States Supreme Court held that the challenge to
signing of the MOA- the constitutionality of the school’s policy allowing student-led
AD.
  prayers and speeches before games was ripe for adjudication,
x x x x  even if no public prayer had yet been led under the policy,
 
GOVERNANCE because the policy was being challenged as
  unconstitutional on its face. [68][68]

xxxx
   
7.   The Parties agree that That the law or act in question is not yet effective
mechanisms and modalities for
the actual implementation of does not negate ripeness. For example, in New York v. United
this MOA-AD shall be spelt out States,[69][69]  decided in 1992, the United States Supreme Court
in the Comprehensive Compact
to mutually take such steps to held that the action by the State of New York challenging the
enable it to occur effectively.  provisions of the Low-Level Radioactive Waste Policy Act was
 
Any provisions of the MOA-AD ripe for adjudication even if the questioned provision was not
requiring amendments to the to take effect until January 1, 1996, because the parties
existing legal framework shall
come into force upon the agreed that New York had to take immediate action to avoid
signing of a Comprehensive
the provision's consequences.[70][70]
Compact and upon effecting
the necessary changes to the  
legal framework with due
The present petitions pray for Certiorari,[71]
regard to non-derogation of
prior agreements and within [71]
 Prohibition, and Mandamus. Certiorari and Prohibition are
the stipulated timeframe to be
remedies granted by law when any tribunal, board or officer
contained in the
Comprehensive Compact.[64] has acted, in the case of certiorari, or is proceeding, in the
[64]
 (Underscoring supplied)
case of prohibition, without or in excess of its jurisdiction or
 
with grave abuse of discretion amounting to lack or excess of
 
jurisdiction.[72][72] Mandamus is a remedy granted by law when
The Solicitor General’s arguments fail to persuade.
any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically right but in fact the duty of the judiciary to settle the
enjoins as a duty resulting from an office, trust, or station, or dispute.[77][77]
unlawfully excludes another from the use or enjoyment of a  
B. LOCUS STANDI 
right or office to which such other is entitled.[73][73] Certiorari,
 
Mandamus and Prohibition are appropriate remedies to raise  
constitutional issues and to review and/or prohibit/nullify,          For a party to have locus standi, one must allege “such a
when proper, acts of legislative and executive officials. [74][74]
personal stake in the outcome of the controversy as to assure
  that concrete adverseness which sharpens the presentation of
The authority of the GRP Negotiating Panel is defined issues upon which the court so largely depends for illumination
by Executive Order No. 3 (E.O. No. 3), issued on February 28, of difficult constitutional questions.”[78][78]
2001.[75][75] The said executive order requires that “[t]he  
government's policy framework for peace, including the          Because constitutional cases are often public actions in
systematic approach and the administrative structure for which the relief sought is likely to affect other persons, a
carrying out the comprehensive peace process x x x be preliminary question frequently arises as to this interest in the
governed by this Executive Order.” [76][76]
constitutional question raised.[79][79]
   
The present petitions allege that respondents GRP          When suing as a citizen, the person complaining must
Panel and PAPP Esperon drafted the terms of the MOA-AD allege that he has been or is about to be denied some right or
without consulting the local government units or communities privilege to which he is lawfully entitled or that he is about to
affected, nor informing them of the proceedings. As will be be subjected to some burdens or penalties by reason of the
discussed in greater detail later, such omission, by itself, statute or act complained of.[80][80] When the issue concerns a
constitutes a departure by respondents from their mandate public right, it is sufficient that the petitioner is a citizen and
under E.O. No. 3. has an interest in the execution of the laws.[81][81]
   
Furthermore, the petitions allege that the provisions          For a taxpayer, one is allowed to sue where there is an
of the MOA-AD violate the Constitution. The MOA-AD provides assertion that public funds are illegally disbursed or deflected
that “any provisions of the MOA-AD requiring amendments to to an illegal purpose, or that there is a wastage of public funds
the existing legal framework shall come into force upon the through the enforcement of an invalid or unconstitutional law.
[82][82]
signing of a Comprehensive Compact and upon effecting the  The Court retains discretion whether or not to allow a
necessary changes to the legal framework,” implying an taxpayer’s suit.[83][83]
amendment of the Constitution to accommodate the MOA-  
AD. This stipulation, in effect, guaranteed to the MILF the          In the case of a legislator or member of Congress, an
amendment of the Constitution. Such act constitutes another act of the Executive that injures the institution of Congress
violation of its authority. Again, these points will be discussed causes a derivative but nonetheless substantial injury that can
in more detail later. be questioned by legislators. A member of the House of
As the petitions allege acts or omissions on the part Representatives has standing to maintain inviolate the
of respondent that exceed their authority, by violating their prerogatives, powers and privileges vested by the Constitution
duties under E.O. No. 3 and the provisions of the Constitution in his office.[84][84]
and statutes, the petitions make a prima facie  case for  
Certiorari, Prohibition, and Mandamus, and an actual case or          An organization may be granted standing to assert the
controversy ripe for adjudication exists. When an act of a rights of its members,[85][85] but the mere invocation by
branch of government is seriously alleged to have the Integrated Bar of the Philippines or any member of the
infringed the Constitution, it becomes not only the
legal profession of the duty to preserve the rule of law does  
not suffice to clothe it with standing. [86][86]
         In G.R. No. 183962, petitioners Ernesto Maceda,
  Jejomar Binay and Aquilino Pimentel III would have no
         As regards a local government unit  (LGU), it can seek standing as citizens and taxpayers for their failure to specify
relief in order to protect or vindicate an interest of its own, and that they would be denied some right or privilege or there
of the other LGUs. [87][87]
would be wastage of public funds. The fact that they are a
  former Senator, an incumbent mayor of Makati City, and a
         Intervenors, meanwhile, may be given legal standing resident of Cagayan de Oro, respectively, is of no
upon showing of facts that satisfy the requirements of the law consequence. Considering their invocation of the
authorizing intervention, [88][88]
 such as a legal interest in the transcendental importance of the issues at hand, however, the
matter in litigation, or in the success of either of the parties.  Court grants them standing. 
   
         In any case, the Court has discretion to relax the          Intervenors Franklin Drilon and Adel Tamano, in
procedural technicality on locus standi, given the liberal alleging their standing as taxpayers, assert that government
attitude it has exercised, highlighted in the case of David v. funds would be expended for the conduct of an illegal and
Macapagal-Arroyo, [89][89]
  where technicalities of procedure were unconstitutional plebiscite to delineate the BJE territory. On
brushed aside, the constitutional issues raised being of that score alone, they can be given legal standing. Their
paramount public interest or of transcendental importance allegation that the issues involved in these petitions are of
deserving the attention of the Court in view of their “undeniable transcendental importance” clothes them with
seriousness, novelty and weight as precedents.[90][90] The added basis for their personality to intervene in these
Court’s forbearing stance on locus standi on issues involving petitions. 
constitutional issues has for its purpose the protection of  
fundamental rights.           With regard to Senator Manuel Roxas, his standing is
  premised on his being a member of the Senate and a citizen to
         In not a few cases, the Court, in keeping with its duty enforce compliance by respondents of the public’s
under the Constitution to determine whether the other constitutional right to be informed of the MOA-AD, as well as
branches of government have kept themselves within the limits on a genuine legal interest in the matter in litigation, or in the
of the Constitution and the laws and have not abused the success or failure of either of the parties. He thus possesses
discretion given them, has brushed aside technical rules of the requisite standing as an intervenor. 
procedure. [91][91]
 
           With respect to Intervenors Ruy Elias Lopez, as a
         In the petitions at bar, petitioners Province of North former congressman of the 3rd district of Davao City, a
Cotabato (G.R. No. 183591) Province of Zamboanga del taxpayer and a member of the Bagobo tribe; Carlo B.
Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) Gomez, et al., as members of the IBP Palawan chapter,
and City of Zamboanga (G.R. No. 183752) and petitioners- citizens and taxpayers; Marino Ridao, as taxpayer, resident
in-intervention Province of Sultan Kudarat, City of and member of the Sangguniang Panlungsod of
Isabela and Municipality of Linamon have locus standi in Cotabato City; and Kisin Buxani, as taxpayer, they failed to
view of the direct and substantial injury that they, as LGUs, allege any proper legal interest in the present petitions. Just
would suffer as their territories, whether in whole or in part, the same, the Court exercises its discretion to relax the
are to be included in the intended domain of the BJE. These procedural technicality on locus standi given the paramount
petitioners allege that they did not vote for their inclusion in public interest in the issues at hand. 
the ARMM which would be expanded to form the BJE territory.  
Petitioners’ legal standing is thus beyond doubt. 
         Intervening respondents Muslim Multi-Sectoral prays for injunctive relief against the possible recurrence of the
Movement for Peace and Development, an advocacy violation.[99][99]
group for justice and the attainment of peace and prosperity in  
Muslim Mindanao; and Muslim Legal Assistance          The present petitions fall squarely into these exceptions
Foundation Inc., a non-government organization of Muslim to thus thrust them into the domain of judicial review. The
lawyers, allege that they stand to be benefited or prejudiced, grounds cited above in David are just as applicable in the
as the case may be, in the resolution of the petitions present cases as they were, not only in David, but also
concerning the MOA-AD, and prays for the denial of the in Province of Batangas v. Romulo[100][100] and Manalo v.
petitions on the grounds therein stated. Such legal interest Calderon[101][101] where the Court similarly decided them on the
suffices to clothe them with standing.  merits, supervening events that would ordinarily have
  rendered the same moot notwithstanding.
B. MOOTNESS 

 
         Respondents insist that the present petitions have been
 
rendered moot with the satisfaction of all the reliefs prayed for
Petition
by petitioners and the subsequent pronouncement of the s not
mooted
Executive Secretary that “[n]o matter what the Supreme Court
 
ultimately decides[,] the government will not sign the MOA.” [92]  
[92]
         Contrary then to the asseverations of respondents, the
  non-signing of the MOA-AD and the eventual dissolution of the
         In lending credence to this policy decision, the Solicitor GRP Peace Panel did not moot the present petitions. It bears
General points out that the President had already disbanded emphasis that the signing of the MOA-AD did not push through
the GRP Peace Panel. [93][93]
due to the Court’s issuance of a Temporary Restraining Order. 
   
         In David v. Macapagal-Arroyo, [94][94]
 this Court held that          Contrary too to respondents’ position, the MOA-AD
the “moot and academic” principle not being a magical formula cannot be considered a mere “list of consensus points,”
that automatically dissuades courts in resolving a case, it will especially given its nomenclature, the need to have it
decide cases, otherwise moot and academic, if it finds that (a) signed or initialed by all the parties concerned on August 5,
there is a grave violation of the Constitution;[95][95] (b) the 2008, and the far-reaching Constitutional implications of
situation is of exceptional character and paramount public these “consensus points,” foremost of which is the creation of
interest is involved; [96][96]
 (c) the constitutional issue raised the BJE. 
requires formulation of controlling principles to guide the  
bench, the bar, and the public; [97][97]
 and (d) the case is          In fact, as what will, in the main, be discussed, there is
capable of repetition yet evading review. [98][98]
a commitment on the part of respondents to amend
  and effect necessary changes to the existing legal
         Another exclusionary circumstance that may be framework for certain provisions of the MOA-AD to
considered is where there is a voluntary cessation of the take effect. Consequently, the present petitions are not
activity complained of by the defendant or doer. Thus, once a confined to the terms and provisions of the MOA-AD, but to
suit is filed and the doer voluntarily ceases the challenged other on-going and future negotiations and agreements
conduct, it does not automatically deprive the tribunal of necessary for its realization. The petitions have not, therefore,
power to hear and determine the case and does not render the been rendered moot and academic simply by the public
case moot especially when the plaintiff seeks damages or disclosure of the MOA-AD,[102][102]the manifestation that it will
not be signed as well as the disbanding of the GRP Panel not          In the present controversy, the MOA-AD is a significant
withstanding. part of a series of agreements  necessary to carry out the
  Tripoli Agreement 2001. The MOA-AD which dwells on
Petition
the Ancestral Domain Aspect of said Tripoli Agreement is the
s are
imbued third such component to be undertaken following the
with
implementation of the Security Aspect in August 2001 and
paramo
unt the Humanitarian, Rehabilitation and Development Aspect in
public
interest May 2002. 
   
 
         Accordingly, even if the Executive Secretary, in his
         There is no gainsaying that the petitions are imbued
Memorandum of August 28, 2008 to the Solicitor General, has
with paramount public interest, involving a significant part of
stated that “no matter what the Supreme Court ultimately
the country’s territory and the wide-ranging political
decides[,] the government will not sign the MOA[-
modifications of affected LGUs. The assertion that the MOA-
AD],” mootness will not set in in light of the terms of the
AD is subject to further legal enactments including
Tripoli Agreement 2001. 
possible Constitutional amendments more than ever
 
provides impetus for the Court to formulate controlling Need to
principles to guide the bench, the bar, the public and, formula
te
in this case, the government and its negotiating entity. principl
es-
 
guideli
         Respondents cite Suplico v. NEDA, et al.[103][103] where nes 
the Court did not “pontificat[e] on issues which no longer
 
legitimately constitute an actual case or controversy [as this]
Surely, the present MOA-AD can be renegotiated or
will do more harm than good to the nation as a whole.” 
another one will be drawn up to carry out the Ancestral
 
Domain Aspect of the Tripoli Agreement 2001, in
         The present petitions must be differentiated
another or in any form, which could contain similar or
from Suplico. Primarily, in Suplico, what was assailed and
significantly drastic provisions. While the Court notes the word
eventually cancelled was a stand-alone government
of the Executive Secretary that the government “is committed
procurement contract for a national broadband network
to securing an agreement that is both constitutional and
involving a one-time contractual relation between two parties—
equitable because that is the only way that long-lasting peace
the government and a private foreign corporation. As the
can be assured,” it is minded to render a decision on the
issues therein involved specific government procurement
merits in the present petitions to formulate controlling
policies and standard principles on contracts, the majority
principles to guide the bench, the bar, the public and,
opinion in Suplico found nothing exceptional therein, the
most especially, the government in negotiating with
factual circumstances being peculiar only to the transactions
the MILF regarding Ancestral Domain.
and parties involved in the controversy. 
 
The
MOA-          Respondents invite the Court’s attention to the separate
AD is
opinion of then Chief Justice Artemio Panganiban in Sanlakas
part of
a series v. Reyes[104][104]  in which he stated that  the doctrine of
of
agreem “capable of repetition yet evading review” can override
ents  mootness, “provided the party raising it in a proper case has

  been and/or continue to be prejudiced or damaged as a direct

result of their issuance.” They contend that the Court must
have jurisdiction over the subject matter for the doctrine to be Petitioners invoke their constitutional right to
invoked.  information on matters of public concern, as provided in
  Section 7, Article III on the Bill of Rights:
The present petitions all contain prayers for  
Sec. 7. The right of the people to
Prohibition over which this Court exercises original jurisdiction.
information on matters of public concern
While G.R. No. 183893 (City of Iligan v. GRP) is a petition for shall be recognized. Access to official
records, and to documents, and papers
Injunction and Declaratory Relief, the Court will treat it as one
pertaining to official acts, transactions, or
for Prohibition as it has far reaching implications and raises decisions, as well as to government research
data used as basis for policy development,
questions that need to be resolved.[105][105] At all events, the shall be afforded the citizen, subject to such
Court has jurisdiction over most if not the rest of the petitions. limitations as may be provided by law.[107][107]
 
 
 
         Indeed, the present petitions afford a proper venue for
         As early as 1948, in Subido v. Ozaeta,[108][108] the Court
the Court to again apply the doctrine immediately referred to
has recognized the statutory right to examine and inspect
as what it had done in a number of landmark cases.[106]
[106]
public records, a right which was eventually accorded
There is a reasonable expectation that petitioners,
constitutional status. 
particularly the Provinces of North Cotabato, Zamboanga del
 
Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and
         The right of access to public documents, as enshrined in
Isabela, and the Municipality of Linamon, will again be
both the 1973 Constitution and the 1987 Constitution, has
subjected to the same problem in the future as respondents’
been recognized as a self-executory constitutional right.[109][109]
actions are capable of repetition, in another or any form. 
 
 
         In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110]
         It is with respect to the prayers for Mandamus that the
[110]
 the Court ruled that access to public records is predicated
petitions have become moot, respondents having, by
on the right of the people to acquire information on matters of
Compliance of August 7, 2008, provided this Court and
public concern since, undoubtedly, in a democracy, the pubic
petitioners with official copies of the final draft of the MOA-AD
has a legitimate interest in matters of social and political
and its annexes. Too, intervenors have been furnished, or have
significance. 
procured for themselves, copies of the MOA-AD. 
V.   SUBSTANTIVE ISSUES  
              x x x The incorporation of this right
  in the Constitution is a recognition of the
fundamental role of free exchange of
         As culled from the Petitions and Petitions-in- information in a democracy. There can be no
Intervention, there are basically two SUBSTANTIVE issues to realistic perception by the public of the
nation’s problems, nor a meaningful
be resolved, one relating to the manner in which the MOA-AD democratic decision-making if they are
was negotiated and finalized, the other relating to its denied access to information of general
interest. Information is needed to enable the
provisions, viz: members of society to cope with the
  exigencies of the times. As has been aptly
observed: “Maintaining the flow of such
         1. Did respondents violate constitutional and statutory information depends on protection for both
provisions on public consultation and the right to information its acquisition and its dissemination since, if
either process is interrupted, the flow
when they negotiated and later initialed the MOA-AD? inevitably ceases.” x x x[111][111]
   

         2. Do the contents of the MOA-AD violate the  

Constitution and the laws?          In the same way that free discussion enables members
          of society to cope with the exigencies of their time, access to
ON THE FIRST SUBSTANTIVE ISSUE
information of general interest aids the people in democratic
 
 consummated, it may be too late for the
decision-making by giving them a better perspective of the
public to expose its defects. 
vital issues confronting the nation[112][112] so that they may be             
            Requiring a consummated contract
able to criticize and participate in the affairs of the government
will keep the public in the dark until the
in a responsible, reasonable and effective manner. It is by contract, which may be grossly
disadvantageous to the government or even
ensuring an unfettered and uninhibited exchange of ideas illegal, becomes fait accompli. This negates
among a well-informed public that a government remains the State policy of full transparency on
matters of public concern, a situation which
responsive to the changes desired by the people.[113][113] the framers of the Constitution could not
  have intended. Such a requirement will
The prevent the citizenry from participating in the
MOA- public discussion of any proposed contract,
AD is a effectively truncating a basic right enshrined
matter in the Bill of Rights. We can allow neither an
of emasculation of a constitutional right, nor a
public retreat by the State of its avowed “policy of
concern full disclosure of all its transactions involving
  public interest.”[122][122] (Emphasis and italics in
the original) 
           
That the subject of the information sought in the  
present cases is a matter of public concern [114][114] faces no          Intended as a “splendid symmetry”[123][123] to the right to
serious challenge. In fact, respondents admit that the MOA-AD information under the Bill of Rights is the policy of
is indeed of public concern.[115][115] In previous cases, the Court public disclosure under Section 28, Article II of the
found that the regularity of real estate transactions entered in Constitution reading:
the Register of Deeds, [116][116]
 the need for adequate notice to  
the public of the various laws, [117][117]
 the civil service eligibility             Sec. 28. Subject to reasonable
conditions prescribed by law, the State
of a public employee,[118][118] the proper management of GSIS adopts and implements a policy of full public
funds allegedly used to grant loans to public officials,[119] disclosure of all its transactions involving
public interest.[124][124]
[119]
 the recovery of the Marcoses’ alleged ill-gotten wealth,[120]
[120]
 and the identity of party-list nominees,[121][121] among  

others, are matters of public concern. Undoubtedly, the MOA-          The policy of full public disclosure enunciated in above-

AD subject of the present cases is of public concern, quoted Section 28 complements the right of access to

involving as it does the sovereignty and territorial information on matters of public concern found in the Bill of

integrity of the State, which directly affects the lives of the Rights. The right to information guarantees the right of the

public at large.  people to demand information, while Section 28 recognizes

  the duty of officialdom to give information even if nobody

         Matters of public concern covered by the right to demands.[125][125]

information include steps and negotiations leading to the  

consummation of the contract. In not distinguishing as to the          The policy of public disclosure establishes a concrete

executory nature or commercial character of agreements, the ethical principle for the conduct of public affairs in a genuinely

Court has categorically ruled:  open democracy, with the people’s right to know as the

  centerpiece. It is a mandate of the State to be accountable by

            x x x [T]he right to information following such policy.[126][126] These provisions are vital to the
“contemplates inclusion of negotiations
leading to the consummation of the exercise of the freedom of expression and essential to hold
transaction.” Certainly, a consummated public officials at all times accountable to the people.[127][127]
contract is not a requirement for the exercise
of the right to information. Otherwise, the  
people can never exercise the right if no          Whether Section 28 is self-executory, the records of the
contract is consummated, and if one is
deliberations of the Constitutional Commission so disclose:
  transactions involving public interest is not enforceable until
MR. SUAREZ. And since this is not
there is an enabling law. Respondents cannot thus point to the
self-executory, this policy will not be
enunciated or will not be in force and effect absence of an implementing legislation as an excuse in not
until after Congress shall have provided it.
effecting such policy. 
 
            MR. OPLE. I expect it to influence  
the climate of public ethics immediately but,
of course, the implementing law will have to          An essential element of these freedoms is to keep open
be enacted by Congress, Mr. Presiding a continuing dialogue or process of communication between
Officer.[128][128]
  the government and the people. It is in the interest of the

  State that the channels for free political discussion be

The following discourse, after Commissioner Hilario maintained to the end that the government may perceive and

Davide, Jr., sought clarification on the issue, is enlightening.  be responsive to the people’s will.[131][131] Envisioned to

  be corollary to the twin rights to information and disclosure is

MR. DAVIDE. I would like to get the design for feedback mechanisms. 
some clarifications on this. Mr. Presiding
Officer, did I get the Gentleman correctly as  
having said that this is not a self-executing MS. ROSARIO BRAID. Yes. And
provision? It would require a legislation by lastly, Mr. Presiding Officer, will the people
Congress to implement?  be able to participate? Will the
  government provide feedback
MR. OPLE. Yes. Originally, it was mechanisms so that the people can
going to be self-executing, but I accepted an participate and can react where the
amendment from Commissioner Regalado, so existing media facilities are not able to
that the safeguards on national interest are provide full feedback mechanisms to the
modified by the clause “as may be provided government? I suppose this will be part
by law” of the government implementing
  operational mechanisms.
MR. DAVIDE. But as worded, does  
it not mean that this will immediately MR. OPLE. Yes. I think through their
take effect and Congress may provide elected representatives and that is how these
for reasonable safeguards on the sole courses take place. There is a message and a
ground national interest?  feedback, both ways. 
   
            MR. OPLE. Yes. I think so, Mr. xxxx
Presiding Officer, I said earlier that it  
should immediately influence the MS. ROSARIO BRAID. Mr. Presiding
climate of the conduct of public Officer, may I just make one last sentence?
affairs but, of course, Congress here may  
no longer pass a law revoking it, or if this is I think when we talk about the
approved, revoking this principle, which is feedback network, we are not talking
inconsistent with this policy.[129] about public officials but also network
[129]
 (Emphasis supplied) of private business o[r] community-
  based organizations that will be
reacting. As a matter of fact, we will put
  more credence or credibility on the private
         Indubitably, the effectivity of the policy of public network of volunteers and voluntary
community-based organizations. So I do not
disclosure need not await the passing of a statute. As think we are afraid that there will be another
Congress cannot revoke this principle, it is merely directed to OMA in the making.[132][132] (Emphasis
supplied) 
provide for “reasonable safeguards.” The complete and
effective exercise of the right to information necessitates that  

its complementary provision on public disclosure derive the          The imperative of a public consultation, as a species of

same self-executory nature. Since both provisions go hand-in- the right to information, is evident in the “marching orders” to

hand, it is absurd to say that the broader [130][130] right to respondents. The mechanics for the duty to disclose

information on matters of public concern is already enforceable information and to conduct public consultation regarding the

while the correlative duty of the State to disclose its peace agenda and process is manifestly provided by E.O. No.
 n
3.[133][133] The preambulatory clause of E.O. No. 3 declares that
commit
there is a need to further enhance the contribution of civil ted
grave
society to the comprehensive peace process by
abuse
institutionalizing the people’s participation.  of
discreti
          on
One of the three underlying principles of the  
 
comprehensive peace process is that it “should be community-
         The PAPP committed grave abuse of
based, reflecting the sentiments, values and principles
discretion when he failed to carry out the pertinent
important to all Filipinos” and “shall be defined not by the
consultation. The furtive process by which the MOA-AD was
government alone, nor by the different contending groups
designed and crafted runs contrary to and in excess of the
only, but by all Filipinos as one community.”[134][134] Included as
legal authority, and amounts to a whimsical, capricious,
a component of the comprehensive peace process is
oppressive, arbitrary and despotic exercise thereof. 
consensus-building and empowerment for peace, which
 
includes “continuing consultations on both national and local
         The Court may not, of course, require the PAPP to
levels to build consensus for a peace agenda and process, and
conduct the consultation in a particular way or manner. It may,
the mobilization and facilitation of people’s participation in the
however, require him to comply with the law and discharge the
peace process.”[135][135]
functions within the authority granted  by the President.[139][139]
 
 
Clearly, E.O. No. 3 contemplates not just the
         Petitioners are not claiming a seat at the negotiating
conduct of a plebiscite to effectuate “continuing”
table, contrary to respondents’ retort in justifying the denial of
consultations, contrary to respondents’ position that
petitioners’ right to be consulted. Respondents’ stance
plebiscite is “more than sufficient consultation.”[136][136]
manifests the manner by which they treat the salient
 
provisions of E.O. No. 3 on people’s participation. Such
         Further, E.O. No. 3 enumerates the functions and
disregard of the express mandate of the President is not much
responsibilities of the PAPP, one of which is to
different from superficial conduct toward token provisos that
“[c]onduct regular dialogues with the National Peace Forum
border on classic lip service.[140][140] It illustrates a gross evasion
(NPF) and other peace partners to seek relevant information,
of positive duty and a virtual refusal to perform the duty
comments, recommendations as well as to render appropriate
enjoined. 
and timely reports on the progress of the comprehensive
 
peace process.”[137][137]E.O. No. 3 mandates the establishment
         As for respondents’ invocation of the doctrine of
of the NPF to be “the principal forum for the PAPP to consult
executive privilege, it is not tenable under the premises. The
with and seek advi[c]e from the peace advocates, peace
argument defies sound reason when contrasted with E.O. No.
partners and concerned sectors of society on both national and
3’s explicit provisions on continuing consultation and dialogue
local levels, on the implementation of the comprehensive
on both national and local levels. The executive order even
peace process, as well as for government[-]civil society
recognizes the exercise of the public’s right even before
dialogue and consensus-building on peace agenda and
the GRP makes its official recommendations or before the
initiatives.”[138][138]
government proffers its definite propositions.[141][141] It bear
 
emphasis that E.O. No. 3 seeks to elicit relevant advice,
         In fine, E.O. No. 3 establishes petitioners’ right to
information, comments and recommendations from the people
be consulted on the peace agenda, as a corollary to the
through dialogue. 
constitutional right to information and disclosure. 
 
 
PAPP          AT ALL EVENTS, respondents effectively waived the
Espero defense of executive privilege in view of their unqualified
disclosure of the official copies of the final draft of the MOA- are represented herein by petitioner Lopez and are adversely
AD. By unconditionally complying with the Court’s August 4, affected by the MOA-AD, the ICCs/IPs have, under the IPRA,
2008 Resolution, without a prayer for the document’s the right to participate fully at all levels of decision-making in
disclosure in camera, or without a manifestation that it was matters which may affect their rights, lives and destinies.[147]
complying therewith ex abundante ad cautelam.  [147]
 The MOA-AD, an instrument recognizing ancestral
  domain, failed to justify its non-compliance with the clear-cut
         Petitioners’ assertion that the Local Government Code mechanisms ordained in said Act,[148][148] which entails, among
(LGC) of 1991 declares it a State policy to “require all national other things, the observance of the free and prior informed
agencies and offices to conduct periodic consultations with consent of the ICCs/IPs. 
appropriate local government units, non-governmental and          Notably, the IPRA does not grant the Executive
people's organizations, and other concerned sectors of the Department or any government agency the power to delineate
community before any project or program is implemented in and recognize an ancestral domain claim by mere agreement
their respective jurisdictions” [142][142]
 is well-taken. The LGC or compromise. The recognition of the ancestral domain is
chapter on intergovernmental relations puts flesh into this the raison d’etre of the MOA-AD, without which all other
avowed policy:  stipulations or “consensus points” necessarily must fail. In
  proceeding to make a sweeping declaration on ancestral
            Prior Consultations Required.
domain, without complying with the IPRA, which is cited as
– No project or program shall be
implemented by government one of the TOR of the MOA-AD, respondents clearly
authorities unless the consultations
transcended the boundaries of their authority. As it
mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval seems, even the heart of the MOA-AD is still subject to
of the sanggunian concerned is obtained:
Provided, That occupants in areas where necessary changes to the legal framework. While paragraph 7
such projects are to be implemented shall on Governance suspends the effectivity of all provisions
not be evicted unless appropriate relocation
sites have been provided, in accordance with requiring changes to the legal framework, such clause is itself
the provisions of the Constitution.[143] invalid, as will be discussed in the following section.
[143]
 (Italics and underscoring supplied) 
   

           Indeed, ours is an open society, with all the acts of the

         In Lina, Jr. v. Hon. Paño,[144][144] the Court held that the government subject to public scrutiny and available always to

above-stated policy and above-quoted provision of the LGU public cognizance. This has to be so if the country is to remain

apply only to national programs or projects which are to be democratic, with sovereignty residing in the people and all

implemented in a particular local community. Among the government authority emanating from them.[149][149]

programs and projects covered are those that are critical to  

 
the environment and human ecology including those that may ON THE SECOND SUBSTANTIVE ISSUE
call for the eviction of a particular group of people residing in          
 
the locality where these will be implemented.[145][145] The MOA-
         With regard to the provisions of the MOA-AD, there can
AD is one peculiar program that unequivocally and
be no question that they cannot all be accommodated under
unilaterally vests ownership of a vast territory to the
the present Constitution and laws. Respondents have admitted
Bangsamoro people,[146][146] which could pervasively and
as much in the oral arguments before this Court, and the MOA-
drastically result to the diaspora or displacement of a
AD itself recognizes the need to amend the existing legal
great number of inhabitants from their total
framework to render effective at least some of its provisions.
environment. 
Respondents, nonetheless, counter that the MOA-AD is free of
 
any legal infirmity because any provisions therein which are
         With respect to the indigenous cultural
inconsistent with the present legal framework will not be
communities/indigenous peoples (ICCs/IPs), whose interests
effective until the necessary changes to that framework are
 Government and the BJE. (Emphasis and
made. The validity of this argument will be considered later.
underscoring supplied)
For now, the Court shall pass upon how 
 
 
The
MOA- The nature of the “associative”  relationship may
AD is have been intended to be defined more precisely in the still to
inconsi
stent be forged Comprehensive Compact. Nonetheless, given that
with there is a concept of “association” in international law, and the
the
Constit MOA-AD – by its inclusion of international law instruments in
ution its TOR– placed itself in an international legal context, that
and
laws as concept of association may be brought to bear in
present
understanding the use of the term “associative” in the MOA-
ly
worded AD.
.
 
 
         Keitner and Reisman state that 
 
 
         In general, the objections against the MOA-AD center on
[a]n association is formed
the extent of the powers conceded therein to the BJE. when two states of unequal power
voluntarily establish durable links. In the
Petitioners assert that the powers granted to the BJE exceed
basic model, one state, the associate,
those granted to any local government under present laws, delegates certain responsibilities to the
other, the principal, while maintaining
and even go beyond those of the present ARMM. Before its international status as a state. Free
assessing some of the specific powers that would have been associations represent a middle ground
between integration and
vested in the BJE, however, it would be useful to turn first to a independence. x x x[150][150] (Emphasis and
general idea that serves as a unifying link to the different underscoring supplied)
 
provisions of the MOA-AD, namely, the international
 
law concept of association. Significantly, the MOA-AD explicitly
            For purposes of illustration, the Republic of the
alludes to this concept, indicating that the Parties actually
Marshall Islands and the Federated States of Micronesia (FSM),
framed its provisions with it in mind. 
formerly part of the U.S.-administered Trust Territory of the
 
Pacific Islands,[151][151] are associated states of the U.S.
         Association  is referred to in paragraph 3 on
pursuant to a Compact of Free Association. The currency in
TERRITORY, paragraph 11 on RESOURCES, and paragraph 4
these countries is the U.S. dollar, indicating their very close
on GOVERNANCE. It is in the last mentioned provision,
ties with the U.S., yet they issue their own travel documents,
however, that the MOA-AD most clearly uses it to describe
which is a mark of their statehood. Their international legal
the envisioned relationship between the BJE and the Central
status as states was confirmed by the UN Security Council and
Government.
by their admission to UN membership.
 
4. The relationship between the Central  
Government and the Bangsamoro          According to their compacts of free association, the
juridical entity shall be associative
characterized by shared authority and Marshall Islands and the FSM generally have the capacity to
responsibility with a structure of conduct foreign affairs in their own name and right, such
governance based on executive, legislative,
judicial and administrative institutions with capacity extending to matters such as the law of the sea,
defined powers and functions in the
marine resources, trade, banking, postal, civil aviation, and
comprehensive compact. A period of
transition shall be established in a cultural relations. The U.S. government, when conducting its
comprehensive peace compact specifying the
foreign affairs, is obligated to consult with the governments of
relationship between the Central
the Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either ancestral domain, resembles the right of the governments of
government.  FSM and the Marshall Islands to be consulted by the U.S.
  government on any foreign affairs matter affecting them.
         In the event of attacks or threats against the Marshall  
Islands or the FSM, the U.S. government has the authority and          These provisions of the MOA indicate, among other
obligation to defend them as if they were part of U.S. territory. things, that the Parties aimed to vest in the BJE the status
The U.S. government, moreover, has the option of establishing of an associated state  or, at any rate, a status closely
and using military areas and facilities within these associated approximating it. 
states and has the right to bar the military personnel of any  
The
third country from having access to these territories for military
concept
purposes. of asso
ciation 
 
is not r
         It bears noting that in U.S. constitutional and ecogniz
ed
international practice, free association is understood as an under
international association between sovereigns. The Compact of the
present
Free Association is a treaty which is subordinate to the Constit
associated nation’s national constitution, and each party may ution
 
terminate the association consistent with the right of  
independence. It has been said that, with the admission of the No province, city, or municipality, not even the
U.S.-associated states to the UN in 1990, the UN recognized ARMM, is recognized under our laws as having an “associative”
that the American model of free association is actually based relationship with the national government. Indeed, the concept
on an underlying status of independence.[152][152] implies powers that go beyond anything ever granted by the
  Constitution to any local or regional government. It also
         In international practice, the “associated state” implies the recognition of the associated entity  as a state. The
arrangement has usually been used as a transitional Constitution, however, does not contemplate any state in this
device of former colonies on their way to full independence. jurisdiction other than the Philippine State, much less does it
Examples of states that have passed through the status of provide for a transitory status that aims to prepare any part of
associated states as a transitional phase are Antigua, St. Kitts- Philippine territory for independence.
Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada.  
All have since become independent states.[153][153]          Even the mere concept animating many of the MOA-AD’s
  provisions, therefore, already requires for its validity the
         Back to the MOA-AD, it contains many provisions which amendment of constitutional provisions, specifically the
are consistent with the international legal concept following provisions of Article X:
of association, specifically the following: the BJE’s capacity to  
enter into economic and trade relations with foreign countries, SECTION 1.   The territorial and political
subdivisions of the Republic of the
the commitment of the Central Government to ensure the Philippines are the provinces, cities,
BJE’s participation in meetings and events in the ASEAN and municipalities, and barangays. There
shall be autonomous regions in Muslim
the specialized UN agencies, and the continuing responsibility Mindanao and the Cordilleras as hereinafter
of the Central Government over external defense. Moreover, provided.
 
the BJE’s right to participate in Philippine official missions SECTION 15. There shall be created
bearing on negotiation of border agreements, environmental autonomous regions in Muslim Mindanao and
in the Cordilleras consisting of provinces,
protection, and sharing of revenues pertaining to the bodies of cities, municipalities, and geographical areas
water adjacent to or between the islands forming part of the sharing common and distinctive historical
and cultural heritage, economic and social
 structures, and other relevant
2(e), the present geographic area of the ARMM and, in
characteristics within the framework of
this Constitution and the national addition, the municipalities of Lanao del Norte which voted for
sovereignty as well as territorial
inclusion in the ARMM during the 2001 plebiscite – Baloi,
integrity of the Republic of the
Philippines. Munai, Nunungan, Pantar, Tagoloan and Tangkal  – are
 
  automatically part of the BJE without need of another
The BJE is a far more powerful  plebiscite, in contrast to the areas under Categories A and B
entity than the autonomous region 
recognized in the Constitution  mentioned earlier in the overview. That the present
  components of the ARMM and the above-mentioned
 
municipalities voted for inclusion therein in 2001, however,
It is not merely an expanded version of the ARMM,
does not render another plebiscite unnecessary under the
the status of its relationship with the national government
Constitution, precisely because what these areas voted for
being fundamentally different from that of the ARMM.
then was their inclusion in the ARMM, not the BJE. 
Indeed, BJE is a state in all but name as it meets the  
criteria of a state laid down in the Montevideo  
The MOA-AD, moreover, would not 
Convention,[154][154] namely, a permanent population, comply with Article X, Section 20 of 
a defined territory, a government, and a capacity to enter into the Constitution 

relations with other states.   

  since that provision defines the powers of autonomous regions
Even assuming arguendo that the MOA-AD would not as follows:
necessarily sever any portion of Philippine territory, the spirit  
animating it – which has betrayed itself by its use of the SECTION 20. Within its territorial jurisdiction
and subject to the provisions of this
concept of association  – runs counter to the national Constitution and national laws, the organic
act of autonomous regions shall provide for
sovereignty and territorial integrity of the Republic. 
legislative powers over:
   
(1)       Administrative organization;
The defining concept underlying the
(2)       Creation of sources of revenues;
relationship between the national government and the (3)       Ancestral domain and natural
resources;
BJE being itself contrary to the present Constitution, it
(4)       Personal, family, and property
is not surprising that many of the specific provisions of relations; 
(5)       Regional urban and rural planning
the MOA-AD on the formation and powers of the BJE
development;
are in conflict with the Constitution and the laws.  (6)       Economic, social, and tourism
development;
  (7)       Educational policies;
         Article X, Section 18 of the Constitution provides that (8)       Preservation and development of the
cultural heritage; and
“[t]he creation of the autonomous          region shall be (9)       Such other matters as may be
effective when approved by a majority of the votes cast by the authorized by law for the promotion
of the general welfare of the people
constituent units in a plebiscite called for the purpose, of the region. (Underscoring
provided that only provinces, cities, and geographic supplied)
 
areas voting favorably in such plebiscite shall be  
included in the autonomous region.” (Emphasis supplied)          Again on the premise that the BJE may be regarded as
  an autonomous region, the MOA-AD would require an
         As reflected above, the BJE is more of a state than an amendment that would expand the above-quoted provision.
autonomous region. But even assuming that it is covered by The mere passage of new legislation pursuant to sub-
the term “autonomous region” in the constitutional provision paragraph No. 9 of said constitutional provision would not
just quoted, the MOA-AD would still be in conflict with it. suffice, since any new law that might vest in the BJE the
Under paragraph 2(c) on TERRITORY in relation to 2(d) and
 Constitut
powers found in the MOA-AD must, itself, comply with other
ion, the
provisions of the Constitution. It would not do, for instance, to MOA-AD
is
merely pass legislation vesting the BJE with treaty-making
also inc
power in order to accommodate paragraph 4 of the strand on onsiste
nt with
RESOURCES which states: “The BJE is free to enter into any prevaili
economic cooperation and trade relations with foreign ng
statuto
countries: provided, however, that such relationships and ry law,
understandings do not include aggression against the among
which
Government of the Republic of the Philippines x x x.” Under are R.A.
our constitutional system, it is only the President who has that No.
9054[156]
power. Pimentel v. Executive Secretary[155][155] instructs:     [156]
 or
  the
            In our system of government, the Organic
President, being the head of state, is Act of
regarded as the sole organ and authority the
in external relations and is the ARMM,
country's sole representative with and
foreign nations. As the chief architect of the IPR
foreign policy, the President acts as the A.[157][157]
country's mouthpiece with respect to  
international affairs. Hence, the President  
is vested with the authority to deal with
foreign states and governments, extend or          Article X, Section 3 of the Organic Act of the
withhold recognition, maintain diplomatic ARMM is a bar to the adoption of the definition of
relations, enter into treaties, and
otherwise transact the business of “Bangsamoro people” used in the MOA-AD. Paragraph 1
foreign relations. In the realm of on CONCEPTS AND PRINCIPLES states:
treaty-making, the President has the  
sole authority to negotiate with other 1. It is the birthright of all Moros and all
states. (Emphasis and underscoring Indigenous peoples of Mindanao to
supplied) identify themselves and be accepted as
  “Bangsamoros”. The Bangsamoro people
  refers to those who are natives or original
inhabitants of Mindanao and its
         Article II, Section 22 of the Constitution must adjacent islands including Palawan and
also be amended if the scheme envisioned in the MOA- the Sulu archipelago at the time of conquest
or colonization of its descendants whether
AD is to be effected. That constitutional provision states: mixed or of full blood. Spouses and their
“The State recognizes and promotes the rights of indigenous descendants are classified as Bangsamoro.
The freedom of choice of the Indigenous
cultural communities within the framework of national people shall be respected. (Emphasis and
unity and development.” (Underscoring underscoring supplied)

supplied) An associative  arrangement does not uphold national

 
unity. While there may be a semblance of unity because of the
            This use of the term Bangsamoro sharply contrasts
associative ties between the BJE and the national
with that found in the Article X, Section 3 of the Organic Act,
government, the act of placing a portion of Philippine territory
which, rather than lumping together the identities of the
in a status which, in international practice, has generally been
Bangsamoro and other indigenous peoples living in Mindanao,
a preparation for independence, is certainly not conducive
clearly distinguishes between Bangsamoro people and
to national unity. 
Tribal peoples, as follows:
 
Besides  
being “As used in this Organic Act, the phrase
irreconcil “indigenous cultural community” refers
able to Filipino citizens residing in the
with the autonomous region who are:
   d)         Proof Required. — Proof of Ancestral
(a) Tribal peoples. These are citizens Domain Claims shall include the testimony of
whose social, cultural and economic elders or community under oath, and other
conditions distinguish them from other documents directly or indirectly attesting to
sectors of the national community; and the possession or occupation of the area
  since time immemorial by such ICCs/IPs in
(b) Bangsa Moro people. These are the concept of owners which shall be any
citizens who are believers in one (1) of the following authentic
Islam and who have retained some or documents:
all of their own social, economic,  
cultural, and political institutions.” 1)   Written accounts of the ICCs/IPs
customs and traditions;
 
 
  2)   Written accounts of the ICCs/IPs
political structure and institution;
         Respecting the IPRA, it lays down the prevailing
 
procedure for the delineation and recognition of ancestral 3)   Pictures showing long term
occupation such as those of old
domains. The MOA-AD’s manner of delineating the ancestral improvements, burial grounds,
domain of the Bangsamoro people is a clear departure from sacred places and old villages;
 
that procedure. By paragraph 1 of TERRITORY, the Parties 4)   Historical accounts, including pacts
simply agree that, subject to the delimitations in the agreed and agreements concerning
boundaries entered into by the
Schedules, “[t]he Bangsamoro homeland and historic territory ICCs/IPs concerned with other
refer to the land mass as well as the maritime, terrestrial, ICCs/IPs;
 
fluvial and alluvial domains, and the aerial domain, the 5)   Survey plans and sketch maps;
atmospheric space above it, embracing the Mindanao-Sulu-  
6)   Anthropological data;
Palawan geographic region.”  
  7)   Genealogical surveys;
 
         Chapter VIII of the IPRA, on the other hand, lays down 8)   Pictures and descriptive histories of
a detailed procedure, as illustrated in the following provisions traditional communal forests and
hunting grounds;
thereof:  
  9)   Pictures and descriptive histories of
SECTION 52. Delineation Process. — The traditional landmarks such as
identification and delineation of ancestral mountains, rivers, creeks, ridges,
domains shall be done in accordance with hills, terraces and the like; and
the following procedures:  
  10) Write-ups of names and places
xxxx derived from the native dialect of
  the community.
b)         Petition for Delineation. — The  
process of delineating a specific perimeter e)         Preparation of Maps. — On the basis
may be initiated by the NCIP with the of such investigation and the findings of fact
consent of the ICC/IP concerned, or through based thereon, the Ancestral Domains Office
a Petition for Delineation filed with the NCIP, of the NCIP shall prepare a perimeter map,
by a majority of the members of the complete with technical descriptions, and a
ICCs/IPs; description of the natural features and
  landmarks embraced therein;
c)         Delineation Proper. — The official  
delineation of ancestral domain boundaries f)         Report of Investigation and Other
including census of all community members Documents. — A complete copy of the
therein, shall be immediately undertaken by preliminary census and a report of
the Ancestral Domains Office upon filing of investigation, shall be prepared by the
the application by the ICCs/IPs concerned. Ancestral Domains Office of the NCIP;
Delineation will be done in coordination with  
the community concerned and shall at all g)         Notice and Publication. — A copy of
times include genuine involvement and each document, including a translation in the
participation by the members of the native language of the ICCs/IPs concerned
communities concerned; shall be posted in a prominent place therein
  for at least fifteen (15) days. A copy of the
document shall also be posted at the local,
 provincial and regional offices of the NCIP, principl
and shall be published in a newspaper of es of
general circulation once a week for two (2) interna
consecutive weeks to allow other claimants tional
to file opposition thereto within fifteen (15) law as
days from date of such publication: part of
Provided, That in areas where no such the law
newspaper exists, broadcasting in a radio of the
station will be a valid substitute: Provided, land.” 
further, That mere posting shall be deemed  
sufficient if both newspaper and radio station
 
are not available;
  Applying this provision of the Constitution, the Court, in Mejoff
h)         Endorsement to NCIP. — Within
v. Director of Prisons,[158][158] held that the Universal Declaration
fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains of Human Rights is part of the law of the land on account of
Office shall prepare a report to the NCIP
endorsing a favorable action upon a claim which it ordered the release on bail of a detained alien of
that is deemed to have sufficient proof. Russian descent whose deportation order had not been
However, if the proof is deemed insufficient,
the Ancestral Domains Office shall require executed even after two years. Similarly, the Court in Agustin
the submission of additional evidence: v. Edu[159][159] applied the aforesaid constitutional provision to
Provided, That the Ancestral Domains Office
shall reject any claim that is deemed the 1968 Vienna Convention on Road Signs and Signals. 
patently false or fraudulent after inspection  
and verification: Provided, further, That in
case of rejection, the Ancestral Domains          International law has long recognized the right to self-
Office shall give the applicant due notice, determination of “peoples,” understood not merely as the
copy furnished all concerned, containing the
grounds for denial. The denial shall be entire population of a State but also a portion thereof. In
appealable to the NCIP: Provided, considering the question of whether the people of Quebec had
furthermore, That in cases where there are
conflicting claims among ICCs/IPs on the a right to unilaterally secede from Canada, the Canadian
boundaries of ancestral domain claims, the Supreme Court in REFERENCE RE SECESSION OF QUEBEC[160]
Ancestral Domains Office shall cause the
[160]
contending parties to meet and assist them  had occasion to acknowledge that “the right of a people to
in coming up with a preliminary resolution of self-determination is now so widely recognized in international
the conflict, without prejudice to its full
adjudication according to the section below. conventions that the principle has acquired a status beyond
  ‘convention’ and is considered a general principle of
xxxx
international law.” 
To remove all doubts about the irreconcilability of the
         
MOA-AD with the present legal system, a discussion of not
Among the conventions referred to are the
only the Constitution and domestic statutes, but also of
International Covenant on Civil and Political Rights [161][161]
 and
international law is in order, for 
the International Covenant on Economic, Social and Cultural
 
Article Rights[162][162] which state, in Article 1 of both covenants, that
II,
all peoples, by virtue of the right of self-determination, “freely
Section
2 of the determine their political status and freely pursue their
Constit
economic, social, and cultural development.”
ution
states  
that
         The people’s right to self-determination should not,
the
Philippi however, be understood as extending to a unilateral right of
nes
secession. A distinction should be made between the right of
“adopts
the internal and external self-determination. REFERENCE RE
general
ly SECESSION OF QUEBEC is again instructive:             
accepte  
d “(ii) Scope of the Right to Self-determination
  
Quebec is equitably represented in legislative, executive and
            126. The recognized sources of
international law establish that the right to judicial institutions within Canada, even occupying prominent
self-determination of a people is
positions therein. 
normally fulfilled through internal self-
determination – a people’s pursuit of  
its political, economic, social and
cultural development within the          The exceptional nature of the right of secession is
framework of an existing state.  A right further exemplified in the REPORT OF THE INTERNATIONAL
to external self-determination (which
in this case potentially takes the form COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
of the assertion of a right to unilateral AALAND ISLANDS QUESTION.[163][163] There, Sweden presented
secession) arises in only the most
extreme of cases and, even then, under to the Council of the League of Nations the question of
carefully defined circumstances. x x x  whether the inhabitants of the Aaland Islands should be
 
External self-determination can be authorized to determine by plebiscite if the archipelago should
defined as in the following statement remain under Finnish sovereignty or be incorporated in the
from the Declaration on Friendly
Relations, supra,  as kingdom of Sweden. The Council, before resolving the
  question, appointed an International Committee composed of
The establishment of a sovereign and
independent State, the free association three jurists to submit an opinion on the preliminary issue of
or integration with an independent whether the dispute should, based on international law, be
State or the emergence into any other
political status freely determined by entirely left to the domestic jurisdiction of Finland. The
a peopleconstitute modes of implementing Committee stated the rule as follows: 
the right of self-determination by that
people. (Emphasis added)  
              x x x [I]n the absence of express
            127. The international law provisions in international treaties, the right
principle of self-determination has of disposing of national territory is
evolved within a framework of respect essentially an attribute of the
for the territorial integrity of existing sovereignty of every State. Positive
states. The various international documents International Law does not recognize
that support the existence of a people’s right the right of national groups, as such, to
to self-determination also contain parallel separate themselves from the State of
statements supportive of the conclusion that which they form part by the simple
the exercise of such a right must be expression of a wish, any more than it
sufficiently limited to prevent threats to an recognizes the right of other States to claim
existing state’s territorial integrity or the such a separation. Generally speaking,
stability of relations between sovereign the grant or refusal of the right to a
states. portion of its population of determining
  its own political fate by plebiscite or by
x x x x (Emphasis, italics and some other method, is, exclusively, an
underscoring supplied) attribute of the sovereignty of every
  State which is definitively constituted .
A dispute between two States concerning
  such a question, under normal conditions
therefore, bears upon a question which
         The Canadian Court went on to discuss the exceptional International Law leaves entirely to the
cases in which the right to external  self-determination can domestic jurisdiction of one of the States
concerned. Any other solution would amount
arise, namely, where a people is under colonial rule, is subject to an infringement of sovereign rights of a
to foreign domination or exploitation outside a colonial context, State and would involve the risk of creating
difficulties and a lack of stability which would
and – less definitely but asserted by a number of not only be contrary to the very idea
commentators – is blocked from the meaningful exercise of its embodied in term “State,” but would also
endanger the interests of the international
right to internal  self-determination. The Court ultimately held community. If this right is not possessed by
that the population of Quebec had no right to secession, as the a large or small section of a nation, neither
can it be held by the State to which the
same is not under colonial rule or foreign domination, nor is it national group wishes to be attached, nor by
being deprived of the freedom to make political choices and any other State. (Emphasis and underscoring
supplied)
pursue economic, social and cultural development, citing that  
  what was discussed above as the right to internal self-
The Committee held that the dispute concerning the Aaland determination. 
Islands did not refer to a question which is left by international  
law to the domestic jurisdiction of Finland, thereby applying          In a historic development last September 13, 2007, the
the exception rather than the rule elucidated above. Its ground UN General Assembly adopted the United Nations Declaration
for departing from the general rule, however, was a very on the Rights of Indigenous Peoples (UN DRIP)
narrow one, namely, the Aaland Islands agitation originated at throughGeneral Assembly Resolution 61/295. The vote was
a time when Finland was undergoing drastic political 143 to 4, the Philippines being included among those in favor,
transformation. The internal situation of Finland was, according and the four voting against being Australia, Canada, New
to the Committee, so abnormal that, for a considerable time, Zealand, and the U.S. The Declaration clearly recognized the
the conditions required for the formation of a sovereign State right of indigenous peoples to self-determination,
did not exist. In the midst of revolution, anarchy, and civil war, encompassing the right to autonomy or self-government, to
the legitimacy of the Finnish national government was disputed wit: 
by a large section of the people, and it had, in fact, been  
Article 3
chased from the capital and forcibly prevented from carrying
 
out its duties. The armed camps and the police were divided Indigenous peoples have the right to self-
determination. By virtue of that right they
into two opposing forces. In light of these circumstances,
freely determine their political status and
Finland was not, during the relevant time period, a “definitively freely pursue their economic, social and
cultural development.
constituted” sovereign state. The Committee, therefore, found  
that Finland did not possess the right to withhold from a Article 4
 
portion of its population the option to separate itself – a right Indigenous peoples, in exercising their right
which sovereign nations generally have with respect to their to self-determination, have the right
to autonomy or self-government in
own populations.  matters relating to their internal and
  local affairs, as well as ways and means for
financing their autonomous functions.
         Turning now to the more specific category  
of indigenous peoples, this term has been used, in scholarship Article 5
 
as well as international, regional, and state practices, to refer Indigenous peoples have the right to
to groups with distinct cultures, histories, and connections to maintain and strengthen their distinct
political, legal, economic, social and cultural
land (spiritual and otherwise) that have been forcibly institutions, while retaining their right to
incorporated into a larger governing society. These groups are participate fully, if they so choose, in the
political, economic, social and cultural life of
regarded as “indigenous” since they are the living descendants the State. 
of pre-invasion inhabitants of lands now dominated by others.  
 
Otherwise stated, indigenous peoples, nations, or communities
         Self-government, as used in international legal discourse
are culturally distinctive groups that find themselves engulfed
pertaining to indigenous peoples, has been understood as
by settler societies born of the forces of empire and conquest.
equivalent to “internal self-determination.”[166][166] The extent of
[164][164]
 Examples of groups who have been regarded as
self-determination provided for in the UN DRIP is more
indigenous peoples are the Maori of New Zealand and the
particularly defined in its subsequent articles, some of which
aboriginal peoples of Canada. 
are quoted hereunder:
 
Article 8
         As with the broader category of “peoples,” indigenous
1.      Indigenous peoples and individuals
peoples situated within states do not have a general right to have the right not to be subjected to
forced assimilation or destruction of
independence or secession from those states under
their culture.
international law, [165][165]
 but they do have rights amounting to
2.      States shall provide effective 3.      States shall give legal recognition and
mechanisms for prevention of, protection to these lands, territories
and redress for: and resources. Such recognition shall
be conducted with due respect to the
(a)     Any action which has the
customs, traditions and land tenure
aim or effect of depriving
systems of the indigenous peoples
them of their integrity as
concerned.
distinct peoples, or of their
 
cultural values or ethnic
Article 30
identities;
 
(b)    Any action which has the 1.      Military activities shall not take place in
aim or effect of the lands or territories of indigenous
dispossessing them of their peoples, unless justified by a relevant
lands, territories or public interest or otherwise freely
resources; agreed with or requested by the
(c)     Any form of forced indigenous peoples concerned.
population transfer which  
has the aim or effect of 2.      States shall undertake effective
violating or undermining consultations with the indigenous
any of their rights; peoples concerned, through
appropriate procedures and in
(d)    Any form of forced assimilation particular through their representative
or integration; institutions, prior to using their lands
or territories for military activities.
 
Article 32
 
(e)     Any form of propaganda 1.      Indigenous peoples have the right to
designed to promote or determine and develop priorities and
incite racial or ethnic strategies for the development or use
discrimination directed of their lands or territories and other
against them. resources.
Article 21  
  2.      States shall consult and cooperate in
1.      Indigenous peoples have the right, good faith with the indigenous
without discrimination, to the peoples concerned through their own
improvement of their economic and representative institutions in order to
social conditions, including, inter alia, obtain their free and informed
in the areas of education, consent prior to the approval of any
employment, vocational training and project affecting their lands or
retraining, housing, sanitation, health territories and other resources,
and social security. particularly in connection with the
2.      States shall take effective measures development, utilization or
and, where appropriate, special exploitation of mineral, water or other
measures to ensure continuing resources.
improvement of their economic and  
social conditions. Particular attention 3.      States shall provide effective
shall be paid to the rights and special mechanisms for just and fair redress
needs of indigenous elders, women, for any such activities, and
youth, children and persons with appropriate measures shall be taken
disabilities. to mitigate adverse environmental,
  economic, social, cultural or spiritual
Article 26 impact.
   
1.      Indigenous peoples have the right Article 37
to the lands, territories and  
resources which they have 1.      Indigenous peoples have the right to
traditionally owned, occupied or the recognition, observance and
otherwise used or acquired. enforcement of treaties, agreements
2.      Indigenous peoples have the right to and other constructive arrangements
own, use, develop and control the concluded with States or their
lands, territories and resources that successors and to have States honour
they possess by reason of traditional and respect such treaties, agreements
ownership or other traditional and other constructive arrangements.
occupation or use, as well as those  
which they have otherwise acquired.
 2.      Nothing in this Declaration may be
associated state. All the rights recognized in that document are
interpreted as diminishing or
eliminating the rights of indigenous qualified in Article 46 as follows:
peoples contained in treaties,
 
agreements and other constructive
1.      Nothing in this Declaration may
arrangements.
be interpreted as implying for any
 
State, people, group or person any
Article 38
right to engage in any activity or to
 
perform any act contrary to the
States in consultation and cooperation with
Charter of the United Nations
indigenous peoples, shall take the
or construed as authorizing or
appropriate measures, including legislative
encouraging any action which
measures, to achieve the ends of this
would dismember or
Declaration.
impair, totally or in part, the
 
territorial integrity or political
 
unity of sovereign and
 
independent States.
         Assuming that the UN DRIP, like the Universal  
Declaration on Human Rights, must now be regarded as  
embodying customary international law – a question which the          Even if the UN DRIP were considered as part of the law
Court need not definitively resolve here – the obligations of the land pursuant to Article II, Section 2 of the Constitution,
enumerated therein do not strictly require the Republic to it would not suffice to uphold the validity of the MOA-AD so as
grant the Bangsamoro people, through the instrumentality of to render its compliance with other laws unnecessary. 
the BJE, the particular rights and powers provided for in the  
MOA-AD. Even the more specific provisions of the UN DRIP are          It is, therefore, clear that the MOA-AD contains
general in scope, allowing for flexibility in its application by the numerous provisions that cannot be reconciled with
different States.  the Constitution and the laws as presently worded.
          Respondents proffer, however, that the signing of the MOA-AD
There is, for instance, no requirement in the UN DRIP alone would not have entailed any violation of law or grave
that States now guarantee indigenous peoples their own police abuse of discretion on their part, precisely because it stipulates
and internal security force. Indeed, Article 8 presupposes that that the provisions thereof inconsistent with the laws shall not
it is the State which will provide protection for indigenous take effect until these laws are amended. They cite paragraph
peoples against acts like the forced dispossession of their lands 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but
– a function that is normally performed by police officers. If which is reproduced below for convenience:
the protection of a right so essential to indigenous people’s  
7. The Parties agree that the
identity is acknowledged to be the responsibility of the State,
mechanisms and modalities for the actual
then surely the protection of rights less significant to them as implementation of this MOA-AD shall be spelt
out in the Comprehensive Compact to
such peoples would also be the duty of States. Nor is there in
mutually take such steps to enable it to
the UN DRIP an acknowledgement of the right of indigenous occur effectively.
peoples to the aerial domain and atmospheric space. What it Any provisions of the MOA-AD requiring
upholds, in Article 26 thereof, is the right of indigenous amendments to the existing legal framework
shall come into force upon signing of a
peoples to the lands, territories and resources which they Comprehensive Compact and upon effecting
have traditionally owned, occupied or otherwise used or the necessary changes to the legal
framework with due regard to non
acquired. derogation of prior agreements and within
  the stipulated timeframe to be contained in
the Comprehensive Compact.
         Moreover, the UN DRIP, while upholding the right of
indigenous peoples to autonomy, does not obligate States to             
grant indigenous peoples the near-independent status of an Indeed, the foregoing stipulation keeps many
controversial provisions of the MOA-AD from coming into force
until the necessary changes to the legal framework are Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O.
effected. While the word “Constitution” is not No. 125,[167][167] states:
mentioned in the provision now under consideration or  
SECTION 4. The Six Paths to Peace. – The
anywhere else in the MOA-AD, the term “legal
components of the comprehensive peace
framework” is certainly broad enough to include the process comprise the processes known as
the “Paths to Peace”. These component
Constitution.
processes are interrelated and not mutually
  exclusive, and must therefore be pursued
simultaneously in a coordinated and
Notwithstanding the suspensive clause, however, integrated fashion. They shall include, but
respondents, by their mere act of incorporating in the MOA-AD may not be limited to, the following:
 
the provisions thereof regarding the associative relationship a.      PURSUIT OF SOCIAL, ECONOMIC AND
between the BJE and the Central Government, have already POLITICAL REFORMS. This
component involves the vigorous
violated the Memorandum of Instructions From The President implementation of various
dated March 1, 2001, which states that the “negotiations shall policies, reforms, programs and
projects aimed at addressing the
be conducted in accordance with x x x the principles of the root causes of internal armed
sovereignty and territorial integrity of the Republic of the conflicts and social unrest. This
may require administrative
Philippines.” (Emphasis supplied) Establishing an associative action, new legislation or even
relationship between the BJE and the Central Government is, constitutional amendments.
 
for the reasons already discussed, a preparation for x x x x (Emphasis supplied)
independence, or worse, an implicit acknowledgment of an  

independent status already prevailing.  

  The MOA-AD, therefore, may reasonably be perceived

Even apart from the above-mentioned Memorandum, as an attempt of respondents to address, pursuant to this

however, the MOA-AD is defective because the suspensive provision of E.O. No. 3, the root causes of the armed conflict in

clause is invalid, as discussed below. Mindanao. The E.O. authorized them to “think outside the

  box,” so to speak. Hence, they negotiated and were set on

         The authority of the GRP Peace Negotiating Panel to signing the MOA-AD that included various social, economic,

negotiate with the MILF is founded on E.O. No. 3, Section 5(c), and political reforms which cannot, however, all be

which states that there shall be established Government Peace accommodated within the present legal framework, and which

Negotiating Panels for negotiations with different rebel groups thus would require new legislation and constitutional

to be “appointed by the President as her official emissaries to amendments.

conduct negotiations, dialogues, and face-to-face discussions  

with rebel groups.” These negotiating panels are to report to          The inquiry on the legality of the “suspensive clause,”

the President, through the PAPP on the conduct and progress however, cannot stop here, because it must be asked 

of the negotiations.  
whethe
  r the
It bears noting that the GRP Peace Panel, in exploring Preside
nt
lasting solutions to the Moro Problem through its negotiations herself
may
with the MILF, was not restricted by E.O. No. 3 only to those
exercis
options available under the laws as they presently stand. One e the
power
of the components of a comprehensive peace process, which
delegat
E.O. No. 3 collectively refers to as the “Paths to Peace,” is the ed to
the
pursuit of social, economic, and political reforms which may
GRP
require new legislation or even constitutional amendments. Peace
Panel scattered provisions of
under the Constitution. This is
E.O. so, notwithstanding the
No. 3, avowed intent of the
Sec. members of the
4(a).  Constitutional Commission
of 1986 to limit the powers
The President cannot delegate a power that she
of the President as a
herself does not possess. May the President, in the course of reaction to the abuses
under the regime of Mr.
peace negotiations, agree to pursue reforms that would
Marcos, for the result was
require new legislation and constitutional amendments, or a limitation of specific
powers of the President,
should the reforms be restricted only to those solutions which particularly those relating
the present laws allow? The answer to this question requires a to the commander-in-chief
clause, but not a
discussion of  diminution of the general
  grant of executive power. 
the             
extent             Thus, the President's authority
of the to declare a state of rebellion springs in
Preside the main from her powers as chief
nt’s executive and, at the same time, draws
power strength from her Commander-in-Chief
to powers. x x x (Emphasis and underscoring
conduct supplied)
peace
negotia Similarly, the President’s power to conduct peace
tions. negotiations is implicitly included in her powers as Chief
 
Executive and Commander-in-Chief. As Chief Executive, the
 
President has the general responsibility to promote public
          That the authority of the President to conduct peace
peace, and as Commander-in-Chief, she has the more specific
negotiations with rebel groups is not explicitly mentioned in
duty to prevent and suppress rebellion and lawless violence.[169]
the Constitution does not mean that she has no such authority.
[169]
In Sanlakas v. Executive Secretary,[168][168] in issue was the
 
authority of the President to declare a state of rebellion – an
         As the experience of nations which have similarly gone
authority which is not expressly provided for in the
through internal armed conflict will show, however, peace is
Constitution. The Court held thus: 
rarely attained by simply pursuing a military solution.
 
            “In her ponencia in Marcos v. Oftentimes, changes as far-reaching as a fundamental
Manglapus, Justice Cortes put her thesis into
reconfiguration of the nation’s constitutional structure is
jurisprudence. There, the Court, by a slim 8-
7 margin, upheld the President's power to required. The observations of Dr. Kirsti Samuels are
forbid the return of her exiled predecessor.
enlightening, to wit: 
The rationale for the majority's ruling rested
on the President's  
  x x x [T]he fact remains that a
            . . . unstated successful political and governance transition
residual powers which must form the core of any post-conflict
are implied from the peace-building mission. As we have observed
grant of executive in Liberia and Haiti over the last ten years,
power and which conflict cessation without modification of the
are necessary for her to political environment, even where state-
comply with her duties building is undertaken through technical
under the electoral assistance and institution- or
Constitution. The capacity-building, is unlikely to succeed. On
powers of the President average, more than 50 percent of states
are not limited to what emerging from conflict return to
are expressly conflict. Moreover, a substantial proportion
enumerated in the of transitions have resulted in weak or
article on the Executive limited democracies. 
Department and in  
 The design of a constitution and its agreement, and now by state policy. [173]
constitution-making process can play an [173]
 (Emphasis supplied) 
important role in the political and  
governance transition. Constitution-making
 
after conflict is an opportunity to create a
common vision of the future of a state and a          The constitutional provisions on autonomy and the
road map on how to get there. The
statutes enacted pursuant to them have, to the credit of their
constitution can be partly a peace agreement
and partly a framework setting up the rules drafters, been partly successful. Nonetheless, the Filipino
by which the new democracy will operate.[170]
[170] people are still faced with the reality of an on-going conflict
between the Government and the MILF. If the President is to
 
be expected to find means for bringing this conflict to an end
         In the same vein, Professor Christine Bell, in her article
and to achieve lasting peace in Mindanao, then she must be
on the nature and legal status of peace agreements, observed
given the leeway to explore, in the course of peace
that the typical way that peace agreements establish or
negotiations, solutions that may require changes to the
confirm mechanisms for demilitarization and demobilization is
Constitution for their implementation. Being uniquely vested
by linking them to new constitutional
with the power to conduct peace negotiations with rebel
structures addressing governance, elections, and legal and
groups, the President is in a singular position to know the
human rights institutions.[171][171]
precise nature of their grievances which, if resolved, may bring
 
an end to hostilities. 
In the Philippine experience, the link between peace
 
agreements and constitution-making has been recognized by
The President may not, of course, unilaterally
no less than the framers of the Constitution. Behind the
implement the solutions that she considers viable, but she may
provisions of the Constitution on autonomous regions[172][172] is
not be prevented from submitting them as recommendations
the framers’ intention to implement a particular peace
to Congress, which could then, if it is minded, act upon them
agreement, namely, the Tripoli Agreement of 1976 between
pursuant to the legal procedures for constitutional amendment
the GRP and the MNLF, signed by then Undersecretary of
and revision. In particular, Congress would have the option,
National Defense Carmelo Z. Barbero and then MNLF Chairman
pursuant to Article XVII, Sections 1 and 3 of the Constitution,
Nur Misuari. 
to propose the recommended amendments or revision to the
 
MR. ROMULO. There are other people, call a constitutional convention, or submit to the
speakers; so, although I have some more electorate the question of calling such a convention. 
questions, I will reserve my right to ask them
if they are not covered by the other speakers.  
I have only two questions.          While the President does not possess constituent
I heard one of the
Commissioners say that local autonomy powers – as those powers may be exercised only by Congress,
already exists in the Muslim region; it is a Constitutional Convention, or the people through initiative
working very well; it has, in fact, diminished a
great deal of the problems. So, my question and referendum – she may submit proposals for constitutional
is: since that already exists, why do we change to Congress in a manner that does not involve the
have to go into something new? 
  arrogation of constituent powers. 
MR. OPLE. May I answer that on  
behalf of Chairman Nolledo. Commissioner
Yusup Abubakar is right that certain          In Sanidad v. COMELEC,[174][174] in issue was the legality
definite steps have been taken to of then President Marcos’ act of directly submitting proposals
implement the provisions of the Tripoli
Agreement with respect to an for constitutional amendments to a referendum, bypassing the
autonomous region in Mindanao. This is interim National Assembly which was the body vested by the
a good first step, but there is no
question that this is merely a partial 1973 Constitution with the power to propose such
response to the Tripoli Agreement itself
amendments. President Marcos, it will be recalled, never
and to the fuller standard of regional
autonomy contemplated in that convened the interim National Assembly. The majority upheld
the President’s act, holding that “the urges of absolute these recommendations merit being formally proposed through
necessity” compelled the President as the agent of the people initiative. 
to act as he did, there being no interim National Assembly to  
propose constitutional amendments. Against this ruling,          These recommendations, however, may amount to
Justices Teehankee and Muñoz Palma vigorously dissented. nothing more than the President’s suggestions to the people,
The Court’s concern at present, however, is not with regard to for any further involvement in the process of initiative by the
the point on which it was then divided in that controversial Chief Executive may vitiate its character as a genuine
case, but on that which was not disputed by either side. “people’s initiative.” The only initiative recognized by the
  Constitution is that which truly proceeds from the people. As
Justice Teehankee’s dissent, [175][175]
 in particular, bears the Court stated in Lambino v. COMELEC:[177][177]
noting. While he disagreed that the President may directly  
“The Lambino Group claims that
submit proposed constitutional amendments to a referendum,
their initiative is the ‘people's voice.’
implicit in his opinion is a recognition that he would have However, the Lambino Group unabashedly
states in ULAP Resolution No. 2006-02, in
upheld the President’s action along with the majority had the
the verification of their petition with the
President convened the interim National Assembly and coursed COMELEC, that ‘ULAP maintains its
unqualified support to the agenda of Her
his proposals through it. Thus Justice Teehankee opined: Excellency President Gloria Macapagal-
  Arroyo for constitutional reforms.’ The
            “Since the Constitution provides for Lambino Group thus admits that their
the organization of the essential ‘people's’ initiative is an ‘unqualified
departments of government, defines and support to the agenda’ of the incumbent
delimits the powers of each and prescribes President to change the Constitution. This
the manner of the exercise of such powers, forewarns the Court to be wary of
and the constituent power has not been incantations of ‘people's voice’ or ‘sovereign
granted to but has been withheld from the will’ in the present initiative.”
President or Prime Minister, it follows that
the President’s questioned decrees proposing              
and submitting constitutional amendments
It will be observed that the President has authority,
directly to the people (without the
intervention of the interim National as stated in her oath of office, [178][178] only to preserve and
Assembly in whom the power is
defend the Constitution. Such presidential power does not,
expressly vested) are devoid of
constitutional and legal basis.”[176] however, extend to allowing her to change the Constitution,
[176]
 (Emphasis supplied)
but simply to recommend proposed amendments or revision.
 
As long as she limits herself to recommending these changes
 
and submits to the proper procedure for constitutional
         From the foregoing discussion, the principle may be
amendments and revision, her mere recommendation need not
inferred that the President – in the course of conducting peace
be construed as an unconstitutional act. 
negotiations – may validly consider implementing even those
 
policies that require changes to the Constitution, but she
The foregoing discussion focused on the President’s
may not unilaterally implement them without the
authority to propose constitutional amendments, since her
intervention of Congress, or act in any way as if the
authority to propose new legislation is not in controversy. It
assent of that body were assumed as a certainty. 
has been an accepted practice for Presidents in this jurisdiction
 
to propose new legislation. One of the more prominent
         Since, under the present Constitution, the people also
instances the practice is usually done is in the yearly State of
have the power to directly propose amendments through
the Nation Address of the President to Congress. Moreover, the
initiative and referendum, the President may also submit her
annual general appropriations bill has always been based on
recommendations to the people, not as a formal proposal to be
the budget prepared by the President, which – for all intents
voted on in a plebiscite similar to what President Marcos did
in Sanidad, but for their independent consideration of whether
 By the
and purposes – is a proposal for new legislation coming from
time
the President.[179][179] these
change
 
s are
The
put in
“suspe
place,
nsive
the
clause”
MOA-
in the
AD
MOA-
itself
AD
would
viewed
be
in light
counte
of the
d
above-
among
discuss
the
ed
“prior
standar
agreem
ds 
ents”
from
  which
Given the limited nature of the President’s authority there
could
to propose constitutional amendments, she cannot be no
guarantee to any third party that the required amendments derogat
ion.
will eventually be put in place, nor even be submitted to a
What remains for discussion in the Comprehensive Compact
plebiscite. The most she could do is submit these proposals as
would merely be the implementing details for these “consensus
recommendations either to Congress or the people, in whom
points” and, notably, the deadline for effecting the
constituent powers are vested. 
contemplated changes to the legal framework. 
 
 
Paragraph 7 on Governance of the MOA-AD states,
Plainly, stipulation-paragraph 7 on GOVERNANCE
however, that all provisions thereof which cannot be reconciled
is inconsistent with the limits of the President’s
with the present Constitution and laws “shall come into force
authority to propose constitutional amendments, it
upon signing of a Comprehensive Compact and upon effecting
being a virtual guarantee that the Constitution and the laws of
the necessary changes to the legal framework.” This
the Republic of the Philippines will certainly be adjusted to
stipulation does not bear the marks of a suspensive condition –
conform to all the “consensus points” found in the MOA-
defined in civil law as a future and uncertain event – but of a
AD. Hence, it must be struck down as unconstitutional. 
term. It is not a question of whether the necessary changes
to the legal framework will be effected, but when. That there  

is no uncertainty being contemplated is plain from what A comparison between the “suspensive clause” of the

follows, for the paragraph goes on to state that the MOA-AD with a similar provision appearing in the 1996 final

contemplated changes shall be “with due regard to non peace agreement between the MNLF and the GRP is most

derogation of prior agreements and within the stipulated instructive.

timeframe to be contained in the Comprehensive Compact.”   

  As a backdrop, the parties to the 1996 Agreement

Pursuant to this stipulation, therefore, it stipulated that it would be implemented in two phases. Phase

is mandatory for the GRP to effect the changes to the legal I covered a three-year transitional period involving the putting

framework contemplated in the MOA-AD – which changes up of new administrative structures through Executive Order,

would include constitutional amendments, as discussed earlier. such as the Special Zone of Peace and Development (SZOPAD)

It bears noting that,  and the Southern Philippines Council for Peace and
  Development (SPCPD), while Phase II covered the
 
establishment of the new regional autonomous to the agreement, among which were the Government of the
government through amendment or repeal of R.A. No. 6734, Togolese Republic, the Economic Community of West African
which was then the Organic Act of the ARMM.  States, and the UN. 
 
 
The stipulations on Phase II consisted of specific
On January 16, 2002, after a successful negotiation
agreements on the structure of the expanded autonomous
between the UN Secretary-General and the Sierra Leone
region envisioned by the parties. To that extent, they are
Government, another agreement was entered into by the UN
similar to the provisions of the MOA-AD. There is, however, a
and that Government whereby the Special Court of Sierra
crucial difference between the two agreements. While the
Leone was established. The sole purpose of the Special Court,
MOA-AD virtually guarantees that the “necessary
an international court, was to try persons who bore the
changes to the legal framework” will be put in place,
greatest responsibility for serious violations of international
the GRP-MNLF final peace agreement states thus:
humanitarian law and Sierra Leonean law committed in the
“Accordingly, these provisions [on Phase II] shall
territory of Sierra Leone since November 30, 1996.
be recommended by the GRP to Congress for incorporation
 
in the amendatory or repealing law.” 
Among the stipulations of the Lomé Accord was a
 
provision for the full pardon of the members of the RUF with
         Concerns have been raised that the MOA-AD would have
respect to anything done by them in pursuit of their objectives
given rise to a binding international law obligation on the part
as members of that organization since the conflict began. 
of the Philippines to change its Constitution in conformity
 
thereto, on the ground that it may be considered either as a
In the Lomé Accord case, the Defence argued that
binding agreement under international law, or a unilateral
the Accord created an internationally binding obligation not
declaration of the Philippine government to the international
to prosecute the beneficiaries of the amnesty provided
community that it would grant to the Bangsamoro people all
therein, citing, among other things, the participation of foreign
the concessions therein stated. Neither ground finds sufficient
dignitaries and international organizations in the finalization of
support in international law, however.                      
that agreement. The Special Court, however, rejected this
 
argument, ruling that the Lome Accord is not a treaty and that
The MOA-AD, as earlier mentioned in the overview
it can only create binding obligations and rights between the
thereof, would have included foreign dignitaries as signatories.
parties in municipal law, not in international law. Hence, the
In addition, representatives of other nations were invited to
Special Court held, it is ineffective in depriving an international
witness its signing in Kuala Lumpur. These circumstances
court like it of jurisdiction. 
readily lead one to surmise that the MOA-AD would have had
 
the status of a binding international agreement had it been “37. In regard to the nature of a negotiated
settlement of an internal armed
signed. An examination of the prevailing principles in
conflict it is easy to assume and to
international law, however, leads to the contrary conclusion.  argue with some degree of
plausibility, as Defence counsel
 
for the defendants seem to have
The Decision on CHALLENGE TO JURISDICTION: done, that the mere fact that in
addition to the parties to the
LOMÉ ACCORD AMNESTY[180][180] (the Lomé Accord case) of the conflict, the document
Special Court of Sierra Leone is enlightening. The Lomé Accord formalizing the settlement is
signed by foreign heads of state
was a peace agreement signed on July 7, 1999 between the or their representatives and
Government of Sierra Leone and the Revolutionary United representatives of international
organizations, means the
Front (RUF), a rebel group with which the Sierra Leone agreement of the parties is
Government had been in armed conflict for around eight years internationalized so as to create
obligations in international law.
at the time of signing. There were non-contracting signatories  
 xxxx peace to be visited with possible legal
  consequences arising from the new
40.    Almost every conflict resolution will situation of conflict created. Such
involve the parties to the conflict and consequences such as action by the
the mediator or facilitator of the Security Council pursuant to Chapter
settlement, or persons or bodies VII arise from the situation and not
under whose auspices the settlement from the agreement, nor from the
took place but who are not at all obligation imposed by it. Such action
parties to the conflict, are not cannot be regarded as a remedy for
contracting parties and who do not the breach. A peace agreement
claim any obligation from the which settles an internalarmed
contracting parties or incur any conflict cannot be ascribed the
obligation from the settlement. same status as one which settles
  an international armed conflict
41.    In this case, the parties to the which, essentially, must be
conflict are the lawful authority between two or more warring
of the State and the RUF which States. The Lomé Agreement
has no status of statehood and is cannot be characterised as an
to all intents and purposes a international instrument. x x x”
faction within the state. The non- (Emphasis, italics and underscoring
contracting signatories of the supplied)
Lomé Agreement were moral
guarantors of the principle that,  
in the terms of Article XXXIV of
         Similarly, that the MOA-AD would have been signed by
the Agreement, “this peace
agreement is implemented with representatives of States and international organizations not
integrity and in good faith by
parties to the Agreement would not have sufficed to vest in it a
both parties”. The moral
guarantors assumed no legal binding character under international law.     
obligation. It is recalled that the UN
by its representative appended,  
presumably for avoidance of doubt, In another vein, concern has been raised that the
an understanding of the extent of the
agreement to be implemented as not MOA-AD would amount to a unilateral declaration of the
including certain international crimes. Philippine State, binding under international law, that it would
 
42.    An international agreement in the comply with all the stipulations stated therein, with the result
nature of a treaty must create rights that it would have to amend its Constitution accordingly
and obligations regulated by
international law so that a breach of regardless of the true will of the people. Cited as authority for
its terms will be a breach determined this view is Australia v. France,[181][181] also known as
under international law which will also
provide principle means of the Nuclear Tests Case, decided by the International Court of
enforcement. The Lomé Agreement Justice (ICJ).
created neither rights nor
obligations capable of being  
regulated by international In the Nuclear Tests Case, Australia challenged before
law. An agreement such as the
Lomé Agreement which brings to the ICJ the legality of France’s nuclear tests in the South
an end an internal armed conflict Pacific. France refused to appear in the case, but public
no doubt creates a factual
situation of restoration of peace statements from its President, and similar statements from
that the international community
other French officials including its Minister of Defence, that its
acting through the Security
Council may take note of. That, 1974 series of atmospheric tests would be its last, persuaded
however, will not convert it to an
the ICJ to dismiss the case.[182][182] Those statements, the ICJ
international agreement which
creates an obligation enforceable held, amounted to a legal undertaking addressed to the
in international, as distinguished
international community, which required no acceptance from
from municipal, law. A breach of
the terms of such a peace agreement other States for it to become effective. 
resulting in resumption of internal
 
armed conflict or creating a threat to
peace in the determination of the
Security Council may indicate a
reversal of the factual situation of
 considered within the general
Essential to the ICJ ruling is its finding that the French
framework of the security of
government intended to be bound to the international international intercourse, and the
confidence and trust which are so
community in issuing its public statements, viz:
essential in the relations among
  States. It is from the actual
43.    It is well recognized that declarations substance of these statements,
made by way of unilateral acts, and from the circumstances
concerning legal or factual situations, attending their making, that the
may have the effect of creating legal legal implications of the
obligations. Declarations of this kind unilateral act must be
may be, and often are, very deduced. The objects of these
specific. When it is the intention of statements are clear and they
the State making the declaration were addressed to the
that it should become bound international community as a
according to its terms, that whole, and the Court holds that
intention confers on the they constitute an undertaking
declaration the character of a possessing legal effect. The Court
legal undertaking, the State considers *270 that the President of
being thenceforth legally the Republic, in deciding upon the
required to follow a course of effective cessation of atmospheric
conduct consistent with the tests, gave an undertaking to the
declaration. An undertaking of this international community to which his
kind, if given publicly, and with an words were addressed. x x x
intent to be bound, even though not (Emphasis and underscoring supplied)
made within the context of  
international negotiations, is binding.  
In these circumstances, nothing in the
         As gathered from the above-quoted ruling of the ICJ,
nature of a quid pro quo nor any
subsequent acceptance of the public statements of a state representative may be construed
declaration, nor even any reply or
as a unilateral declaration only when the following conditions
reaction from other States, is required
for the declaration to take effect, are present: the statements were clearly addressed to the
since such a requirement would be
international community, the state intended to be bound to
inconsistent with the strictly unilateral
nature of the juridical act by which that community by its statements, and that not to give legal
the pronouncement by the State was
effect to those statements would be detrimental to the security
made.
  of international intercourse. Plainly, unilateral declarations
44.    Of course, not all unilateral acts
imply obligation; but a State may arise only in peculiar circumstances.
choose to take up a certain  
position in relation to a particular
matter with the intention of          The limited applicability of the Nuclear Tests Case ruling
being bound–the intention is to was recognized in a later case decided by the ICJ
be ascertained by interpretation
of the act. When States make entitled Burkina Faso v. Mali, [183][183]
 also known as the Case
statements by which their freedom of Concerning the Frontier Dispute. The public declaration subject
action is to be limited, a restrictive
interpretation is called for. of that case was a statement made by the President of Mali, in
  an interview by a foreign press agency, that Mali would abide
xxxx
  by the decision to be issued by a commission of the
51.    In announcing that the 1974 Organization of African Unity on a frontier dispute then
series of atmospheric tests would
be the last, the French pending between Mali and Burkina Faso. 
Government conveyed to the Unlike in the Nuclear Tests Case, the ICJ held that the
world at large, including the
Applicant, its intention effectively statement of Mali’s President was not a unilateral act with legal
to terminate these tests. It was implications. It clarified that its ruling in the Nuclear Tests case
bound to assume that other
States might take note of these rested on the peculiar circumstances surrounding the French
statements and rely on their declaration subject thereof, to wit: 
being effective. The validity of  
these statements and their legal
consequences must be
 40.    In order to assess the intentions of the
Malaysia, as facilitator. As held in the Lomé Accord case, the
author of a unilateral act, account
must be taken of all the factual mere fact that in addition to the parties to the conflict, the
circumstances in which the act
peace settlement is signed by representatives of states and
occurred. For example, in the
Nuclear Tests cases, the Court international organizations does not mean that the agreement
took the view that since the
applicant States were not the is internationalized so as to create obligations in international
only ones concerned at the law. 
possible continuance of
atmospheric testing by the  
French Government, that Since the commitments in the MOA-AD were not
Government's unilateral
declarations had ‘conveyed to the addressed to States, not to give legal effect to such
world at large, including the commitments would not be detrimental to the security of
Applicant, its intention effectively
to terminate these tests‘ (I.C.J. international intercourse – to the trust and confidence essential
Reports 1974, p. 269, para. 51; p. in the relations among States.
474, para. 53). In the particular
circumstances of those cases, the  
French Government could not In one important respect, the circumstances
express an intention to be bound
otherwise than by unilateral surrounding the MOA-AD are closer to that of Burkina
declarations. It is difficult to see Faso wherein, as already discussed, the Mali President’s
how it could have accepted the
terms of a negotiated solution statement was not held to be a binding unilateral declaration
with each of the applicants by the ICJ. As in that case, there was also nothing to hinder
without thereby jeopardizing its
contention that its conduct was the Philippine panel, had it really been its intention to be
lawful. The circumstances of the bound to other States, to manifest that intention by formal
present case are radically
different. Here, there was agreement. Here, that formal agreement would have come
nothing to hinder the Parties
about by the inclusion in the MOA-AD of a clear commitment
from manifesting an intention to
accept the binding character of to be legally bound to the international community, not just
the conclusions of the
the MILF, and by an equally clear indication that the signatures
Organization of African Unity
Mediation Commission by the of the participating states-representatives would constitute an
normal method: a formal
acceptance of that commitment. Entering into such a formal
agreement on the basis of
reciprocity. Since no agreement of agreement would not have resulted in a loss of face for the
this kind was concluded between the
Philippine government before the international community,
Parties, the Chamber finds that there
are no grounds to interpret the which was one of the difficulties that prevented the French
declaration made by Mali's head of
State on 11 April 1975 as a unilateral Government from entering into a formal agreement with other
act with legal implications in regard to countries. That the Philippine panel did not enter into such a
the present case. (Emphasis and
underscoring supplied) formal agreement suggests that it had no intention to be
  bound to the international community. On that ground, the
  MOA-AD may not be considered a unilateral declaration under
Assessing the MOA-AD in light of the above criteria, it international law. 
would not have amounted to a unilateral declaration on the  
part of the Philippine State to the international community. The          The MOA-AD not being a document that can bind the
Philippine panel did not draft the same with the clear intention Philippines under international law notwithstanding,
of being bound thereby to the international community as a respondents’ almost consummated act of guaranteeing
whole or to any State, but only to the MILF. While there were amendments to the legal framework is, by itself,
States and international organizations involved, one way or sufficient to constitute grave abuse of discretion. The
another, in the negotiation and projected signing of the MOA- grave abuse lies not in the fact that they considered, as a
AD, they participated merely as witnesses or, in the case of solution to the Moro Problem, the creation of a state within a
state, but in their brazen willingness to guarantee that and the public; and (d) the fact that the case is capable of
Congress and the sovereign Filipino people would give repetition yet evading review.
their imprimatur to their solution. Upholding such an act  
would amount to authorizing a usurpation of the constituent          The MOA-AD is a significant part of a series of
powers vested only in Congress, a Constitutional Convention, agreements necessary to carry out the GRP-MILF Tripoli
or the people themselves through the process of initiative, for Agreement on Peace signed by the government and the MILF
the only way that the Executive can ensure the outcome of the back in June 2001. Hence, the present MOA-AD can be
amendment process is through an undue influence or renegotiated or another one drawn up that could contain
interference with that process.  similar or significantly dissimilar provisions compared to the
  original. 
The sovereign people may, if it so desired, go to the          
extent of giving up a portion of its own territory to the Moros          The Court, however, finds that the prayers for
for the sake of peace, for it can change the Constitution in any mandamus have been rendered moot in view of the
it wants, so long as the change is not inconsistent with what, respondents’ action in providing the Court and the petitioners
in international law, is known as Jus Cogens. [184]
with the official copy of the final draft of the MOA-AD and its
[184]
 Respondents, however, may not preempt it in that annexes. 
decision.      
           The people’s right to information on matters of public
 
concern under Sec. 7, Article III of the Constitution is
SUMMARY 
in splendid symmetry with the state policy of full public
 
disclosure of all its transactions involving public interest under
The petitions are ripe for adjudication. The failure of
Sec. 28, Article II of the Constitution. The right to information
respondents to consult the local government units or
guarantees the right of the people to demand information,
communities affected constitutes a departure by respondents
while Section 28 recognizes the duty of officialdom to give
from their mandate under E.O. No. 3. Moreover, respondents
information even if nobody demands. The complete and
exceeded their authority by the mere act of guaranteeing
effective exercise of the right to information necessitates that
amendments to the Constitution. Any alleged violation of the
its complementary provision on public disclosure derive the
Constitution by any branch of government is a proper matter
same self-executory nature, subject only to reasonable
for judicial review. 
safeguards or limitations as may be provided by law. 
 
 
         As the petitions involve constitutional issues which are of
         The contents of the MOA-AD is a matter of paramount
paramount public interest or of transcendental importance, the
public concern involving public interest in the highest order. In
Court grants the petitioners, petitioners-in-intervention and
declaring that the right to information contemplates steps and
intervening respondents the requisite locus standi in keeping
negotiations leading to the consummation of the contract,
with the liberal stance adopted in David v. Macapagal-Arroyo. 
jurisprudence finds no distinction as to the executory nature or
 
commercial character of the agreement. 
         Contrary to the assertion of respondents that the non-
         
signing of the MOA-AD and the eventual dissolution of the GRP
An essential element of these twin freedoms is to
Peace Panel mooted the present petitions, the Court finds that
keep a continuing dialogue or process of communication
the present petitions provide an exception to the “moot and
between the government and the people. Corollary to these
academic” principle in view of (a) the grave violation of the
twin rights is the design for feedback mechanisms. The right to
Constitution involved; (b) the exceptional character of the
public consultation was envisioned to be a species of these
situation and paramount public interest; (c) the need to
public rights.
formulate controlling principles to guide the bench, the bar,
   
         At least three pertinent laws animate these          IN SUM, the Presidential Adviser on the Peace Process
constitutional imperatives and justify the exercise of the committed grave abuse of discretion when he failed to carry
people’s right to be consulted on relevant matters relating to out the pertinent consultation process, as mandated by E.O.
the peace agenda.  No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
  furtive process by which the MOA-AD was designed and
         One, E.O. No. 3 itself is replete with mechanics for crafted runs contrary to and in excess of the legal authority,
continuing consultations on both national and local levels and and amounts to a whimsical, capricious, oppressive, arbitrary
for a principal forum for consensus-building. In fact, it is the and despotic exercise thereof. It illustrates a gross evasion of
duty of the Presidential Adviser on the Peace Process to positive duty and a virtual refusal to perform the duty
conduct regular dialogues to seek relevant information, enjoined.
comments, advice, and recommendations from peace partners  
and concerned sectors of society.           The MOA-AD cannot be reconciled with the present
  Constitution and laws. Not only its specific provisions but the
         Two, Republic Act No. 7160 or the Local Government very concept underlying them, namely, the associative
Code of 1991 requires all national offices to conduct relationship envisioned between the GRP and the
consultations before any project or program critical to the BJE, are unconstitutional, for the concept presupposes that
environment and human ecology including those that may call the associated entity is a state and implies that the same is on
for the eviction of a particular group of people residing in such its way to independence. 
locality, is implemented therein. The MOA-AD is one peculiar  
program that unequivocally and unilaterally vests ownership of          While there is a clause in the MOA-AD stating that the
a vast territory to the Bangsamoro people, which could provisions thereof inconsistent with the present legal
pervasively and drastically result to the diaspora or framework will not be effective until that framework is
displacement of a great number of inhabitants from their total amended, the same does not cure its defect. The inclusion of
environment. provisions in the MOA-AD establishing an associative
  relationship between the BJE and the Central Government is,
         Three, Republic Act No. 8371 or the Indigenous Peoples itself, a violation of the Memorandum of Instructions From The
Rights Act of 1997 provides for clear-cut procedure for the President dated March 1, 2001, addressed to the government
recognition and delineation of ancestral domain, which entails, peace panel. Moreover, as the clause is worded, it virtually
among other things, the observance of the free and prior guarantees that the necessary amendments to the Constitution
informed consent of the Indigenous Cultural and the laws will eventually be put in place. Neither the GRP
Communities/Indigenous Peoples. Notably, the statute does Peace Panel nor the President herself is authorized to make
not grant the Executive Department or any government such a guarantee. Upholding such an act would amount to
agency the power to delineate and recognize an ancestral authorizing a usurpation of the constituent powers vested only
domain claim by mere agreement or compromise.  in Congress, a Constitutional Convention, or the people
  themselves through the process of initiative, for the only way
         The invocation of the doctrine of executive privilege as a that the Executive can ensure the outcome of the amendment
defense to the general right to information or the specific right process is through an undue influence or interference with that
to consultation is untenable. The various explicit legal process. 
provisions fly in the face of executive secrecy. In any event,  
respondents effectively waived such defense after it While the MOA-AD would not amount to an
unconditionally disclosed the official copies of the final draft of international agreement or unilateral declaration binding on
the MOA-AD, for judicial compliance and public scrutiny.  the Philippines under international law, respondents’ act of
guaranteeing amendments is, by itself, already a constitutional
violation that renders the MOA-AD fatally defective. 
 
WHEREFORE, respondents’ motion to dismiss
is DENIED. The main and intervening petitions are GIVEN
DUE COURSE and hereby GRANTED. 
 
The Memorandum of Agreement on the Ancestral
Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001 is declared CONTRARY TO LAW AND THE
CONSTITUTION. 
 

         SO ORDERED.