THE PROVINCE OF NORTH COTABATO, et al . v .

THE GOVERNMENT OF THE

REPUBLIC OF THE PHILIPPINES, et al .
President Gloria Macapagal-Arroyo, in line with the governments policy of pursuing peace negotiations
with the Moro Islamic Liberation Front (MILF), asked PrimeMinister Mahathir Mohammad to convince
the MILF to continue negotiating with the government. MILF, thereafter, convened its Central Committee
and decided to meet with the Government of the Republic of the Philippines (GRP). Formal peace talks
were held in Libya which resulted to the crafting of the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) which consists of three (3) aspects: a.) security aspect; b.) rehabilitation aspect; and c.)
ancestral domain aspect. Various negotiations were held which led to the finalization of
the Memorandum of Agreement on the Ancestral Domain (MOA-AD). The said memorandum was set to
be signed last August 5, 2008. In its body, it grants the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The latter, in
addition, has the freedom to enter into any economic cooperation and trade relation with foreign
countries. The sharing between the Central Government and the BJE of total production pertaining to
natural resources is to be 75:25 in favor of the BJE. The MOA-AD further provides for the extent of the
territory of the Bangsamoro. It describes it as the land mass as well as the maritime, terrestrial, fluvial
and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region. With regard to governance, on the other hand, a shared
responsibility and authority between the Central Government and BJE was provided. The relationship was
described as associative. With the formulation of the MOA-AD, petitioners aver that the negotiation
and finalization of the MOA-AD violates constitutional and statutory provisions on public consultation,
as mandated by Executive Order No. 3, and right to information. They further contend that it violates the
Constitution and laws. Hence, the filing of the petition.

ISSUES:
1) Whether or not the MOA-AD violates constitutional and statutory provisions on public consultation
and right to information 2) Whether or not the MOA-AD violates the Constitution and the laws.

HELD:
The MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affectsthe lives of the public at large. Intended as a
splendid symmetry to the right to information under the Bill of Rights is the policy of public disclosure
under Section 28, Article II of the Constitution which provides that subject to reasonable conditions
prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions
involving public interest. Moreover, the policy of full public disclosure enunciated in above-quoted
Section 28 complements the right of access to information on matters of public concern found in the Bill
of Rights. The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody demands. The policy of
public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely
open democracy, with the peoples right to know as the centerpiece. It is a mandate of the State to be
accountable by following such policy. These provisions are vital to the exercise of the freedom of
expression and essential to hold public officials at all times accountable to the people. Indubitably, the
effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot
revoke this principle, it is merely directed to provide for reasonable safeguards. The complete and
effective exercise of the right to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to
say that the broader right to information on matters of public concern is already enforceable while the
correlative duty of the State to disclose its transactions involving public interest is not enforceable until
there is an enabling law. Respondents cannot thus point to the absence of an implementing legislation as
an excuse in not effecting such policy. An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the government and the people. It is in the

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interest of the State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the peoples will. Envisioned to be corollary to the twin
rights to information and disclosure is the design for feedback mechanisms. The imperative of a public
consultation, as a species of the right to information, is evident in the marching orders to respondents.
The mechanics for the duty to disclose information and to conduct public consultation regarding the
peace agenda and process is manifestly provided by E.O. No. 3. The preambulatory clause of E.O. No. 3
declares that there is a need to further enhance the contribution of civil society to the comprehensive
peace process by institutionalizing the peoples participation. One of the three underlying principles of the
comprehensive peace process is that it should be community-based, reflecting the sentiments, values
and principles important to all Filipinos and shall be defined not by the government alone, nor by the
different contending groups only, but by all Filipinos as one community. Included as a component of the
comprehensive peace process is consensus-building and empowerment for peace, which includes
continuing consultations on both national and local levels to build consensus for a peace agenda and
process, and the mobilization and facilitation of peoples participation in the peace process.Clearly, E.O.
No. 3 contemplates not just the conduct of a plebiscite to effectuate continuing consultations, contrary
to respondents position that plebiscite is more than sufficient consultation.Further, E.O. No. 3
enumerates the functions and responsibilities of the PAPP, one of which is to conduct regular dialogues
with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments,
recommendations as well as to render appropriate and timely reports on the progress of the
comprehensive peace process. E.O. No. 3 mandates the establishment of the NPF to be the principal
forum for the Presidential Adviser on Peace Progress (PAPP) to consult with and seek advi[c]e from the
peace advocates, peace partners and concerned sectors of society on both national and local levels, on the
implementation of the comprehensive peace process, as well as for government[-]civil society dialogue
and consensus-building on peace agenda and initiatives. In fine, E.O. No. 3 establishes petitioners right
to be consulted on the peace agenda, as a corollary to the constitutional right to information and
disclosure. In general, the objections against the MOA-AD center on the extent of the powers conceded
therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the present ARMM. Before assessing some
of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to
a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind. Association is referred to in
paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is
in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the
envisioned relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity shall be
associative characterized by shared authority and responsibility with a structure of governance based on
executive, legislative, judicial and administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in a comprehensive peace compact
specifying the relationship between the Central Government and the BJE. The nature of the associative
relationship may have been intended to be defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of association in international law, and the MOA-
AD by its inclusion of international law instruments in its TOR placed itself in an international legal
context, that concept of association may be brought to bear in understanding the use of the term
associative in the MOA-AD. The MOA-AD contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJEs capacity to enter into
economic and trade relations with foreign countries, the commitment of the Central Government to ensure
the BJEs participation in meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense. Moreover, the BJEs right to
participate in Philippine official missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands

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forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall
Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These
provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of
an associated state or, at any rate, a status closely approximating it. The concept of association is not
recognized under the present Constitution. No province, city, or municipality, not even the ARMM, is
recognized under our laws as having an associative relationship with the national government. Indeed,
the concept implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state. The Constitution,
however, does not contemplate any state in this jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to prepare any part of Philippine territory for
independence.
Even the mere concept animating many of the MOA-ADs provisions, therefore, already requires for its
validity the amendment of constitutional provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the
provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao
and the Cordilleras as hereinafter provided. SECTION 15. There shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical
areas sharing common and distinctive historical and cultural heritage, economic and social structures, and
other relevant characteristics within the framework of this Constitution and the national sovereignty as
well as territorial integrity of the Republic of the Philippines.
It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name
as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent
population, a defined territory, a government, and a capacity to enter into relations with other states.
The defining concept underlying the relationship between the national government and the BJE being
itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the M
OA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. Article
X, Section 18 of the Constitution provides that [t]he creation of the autonomous region shall be
effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for
the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite
shall be included in the autonomous region.
The BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
autonomous region in the constitutional provision just quoted, the MOA-AD would still be in conflict
with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of
the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the
ARMM during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal are
automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories
A and B mentioned earlier in the overview. That the present components of the ARMM and the above-
mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion
in the ARMM, not the BJE.
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD
is to be effected. That constitutional provision states: The State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity and development. An associative
arrangement does not uphold national unity. While there may be a semblance of unity because of the
associative ties between the BJE and the national government, the act of placing a portion of Philippine
territory in a status which, in international practice, has generally been a preparation for independence, is
certainly not conducive to national unity.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned between
the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state

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and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present
legal framework will not be effective until that framework is amended, the same does not cure its defect.
The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and
the Central Government is, itself, a violation of the Memorandum of Instructions from the President dated
March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place.
Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding
such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress,
a Constitutional Convention, or the people themselves through the process of initiative, for the only way
that the Executive can ensure the outcome of the amendment process is through an undue influence or
interference with that process.

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