Province of North Cotabato vs GRP Peace Panel on
On July 23, 2008, the Province of North Cotabato
Ancestral Domain
Facts:
1. On August 5, 2008, the Government of the
Republic of the Philippines (GRP) and the MILF,
through the Chairpersons of their respective peace
negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral
Domain (MOA-AD) Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001 in Kuala
Lumpur, Malaysia.
2. The signing of the MOA-AD between the GRP and
the MILF was not to materialize, however, for upon
motion of petitioners, specifically those who filed
their cases before the scheduled signing of the
MOA-AD, this Court issued a Temporary
Restraining Order enjoining the GRP from signing
the same.
3. The MOA-AD was preceded by a long process of
negotiation and the concluding of several prior
agreements between the two parties beginning in
1996, when the GRP-MILF peace negotiations
began.
4. On July 18, 1997, the GRP and MILF Peace
Panels signed the Agreement on General
Cessation of Hostilities. The following year, they
signed the General Framework of Agreement of
Intent on August 27, 1998.
5.
and Vice-Governor Emmanuel Piñol filed a
petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the
Issuance of Writ of Preliminary Injunction and
Temporary Restraining Order.
6. Invoking the right to information on matters of
public concern, petitioners seek to compel
respondents to disclose and furnish them the
complete and official copies of the MOA-AD
including its attachments, and to prohibit the slated
signing of the MOA-AD, pending the disclosure of
the contents of the MOA-AD and the holding of a
public consultation thereon.
7. Supplementarily, petitioners pray that the MOA-AD
be declared unconstitutional.
The SC declared the MOA-AD contrary to law and the
Constitution.
 On the Procedural Issue
1st issue: As regards the procedural issue, SC upheld
that there is indeed a need for the exercise of judicial
review.
The power of judicial review is limited to actual cases or
controversy, that is the court will decline on issues that
are hypothetical, feigned problems or mere academic
questions. Related to the requirement of an actual case
or controversy is the requirement of ripeness. The
contention of the SolGen is that there is no issue ripe for
adjudication since the MOA-AD is only a proposal and
does not automatically create legally demandable rights
and obligations. Such was denied.
The SC emphasized that the petitions are alleging acts
made in violation of their duty or in grave abuse of
discretion. Well-settled jurisprudence states that acts
made by authority which exceed their authority, by
violating their duties under E.O. No. 3 and the provisions
of the Constitution and statutes, the petitions make a
prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for
adjudication exists. When an act of a branch of
government is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. This is aside
from the fact that concrete acts made under the MOA-AD
are not necessary to render the present controversy ripe
and that the law or act in question as not yet effective
does not negate ripeness.
With regards to the locus standi, the court upheld the
personalities of the Province of Cotabato, Province of
Zamboanga del norte, City of Iligan, City of Zamboanga,
petitioners in intervention Province of Sultan Kudarat,
City of Isabela and Municipality of Linnamon to have
locus standi since it is their LGUs which will be affected
in whole or in part if include within the BJE. Intervenors
Franklin Drilon and Adel Tamano, in alleging their
standing as taxpayers, assert that government funds
would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory.
On that score alone, they can be given legal standing.
Senator Mar Roxas is also given a standing as an
intervenor. And lastly, the Intervening respondents
Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the
attainment of peace and prosperity in Muslim Mindanao;
and Muslim Legal Assistance Foundation Inc., a non-
government organization of Muslim lawyers since they
stand to be benefited or prejudiced in the resolution of
the petitions regarding the MOA-AD.
On the contention of mootness of the issue considering
the signing of the MOA-AD has already been suspended
and that the President has already disbanded the GRP,
the SC disagrees. The court reiterates that the moot and
academic principle is a general rule only, the exceptions,
provided in David v. Macapagal-Arroyo, that it will decide
cases, otherwise moot and academic, if it finds that (a)
there is a grave violation of the Constitution; (b) the
situation is of exceptional character and paramount
public interest is involved; (c) the constitutional issue
raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and (d) the case
is capable of repetition yet evading review; and that
where there is a voluntary cessation of the activity
complained of by the defendant or doer, it does not divest
the court the power to hear and try the case especially
when the plaintiff is seeking for damages or injunctive
relief.
Clearly, the suspension of the signing of the MOA-AD
and the disbandment of the GRP did not render the
petitions moot and academic. The MOA-AD is subject to
further legal enactments including possible Constitutional
amendments more than ever provides impetus for the
Court to formulate controlling principles to guide the
bench, the bar, the public and, in this case, the
government and its negotiating entity.
At all events, the Court has jurisdiction over most if not
the rest of the petitions. There is a reasonable
expectation that petitioners will again be subjected to the
same problem in the future as respondents' actions are
capable of repetition, in another or any form. But with
respect to the prayer of Mandamus to the signing of the
MOA-AD, such has become moot and academic
considering that parties have already complied thereat.
 On the Substantive Issue
2nd Issue: The SC ruled that the MOA-AD is a matter of
public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the
lives of the public at large.
As enshrined in the Constitution, the right to information
guarantees the right of the people to demand information,
and integrated therein is the recognition of the duty of the
officialdom to give information even if nobody demands.
The policy of public disclosure establishes a concrete
ethical principle for the conduct of public affairs in a
genuinely open democracy, with the people's right to
know as the centerpiece. It is a mandate of the State to
be accountable by following such policy. These
provisions are vital to the exercise of the freedom of
expression and essential to hold public officials at all
times accountable to the people.
Also, it was held that such stipulation in the Constitution
is self-executory with reasonable safeguards —the
effectivity of which need not await the passing of a
statute. Hence, it is essential to keep open a continuing
dialogue or process of communication between the
government and the people. It is in the interest of the
State that the channels for free political discussion be
maintained to the end that the government may perceive
and be responsive to the people's will.
The idea of a feedback mechanism was also sought for
since it is corollary to the twin rights to information and
disclosure. And feedback means not only the conduct of
the plebiscite as per the contention of the respondents.
Clearly, what the law states is the right of the petitioners
to be consulted in the peace agenda as corollary to the
constitutional right to information and disclosure. As
such, respondent Esperon committed grave abuse of
discretion for failing to carry out the furtive process by
which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and
amounts to a whimsical, capricious, oppressive, arbitrary
and despotic exercise thereto. Moreover, he cannot
invoke of executive privilege because he already waived
it when he complied with the Court’s order to the
unqualified disclosure of the official copies of the final
draft of the MOA-AD.
In addition, the LGU petitioners has the right to be
involved in matters related to such peace talks as
enshrined in the State policy. The MOA-AD is one
peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people,
which could pervasively and drastically result to the
diaspora or displacement of a great number of
inhabitants from their total environment.
With respect to the ICC/IPPs they also have the right to
participate fully at all levels on decisions that would
clearly affect their lives, rights and destinies. The MOA-
AD is an instrument recognizing ancestral domain, hence
it should have observed the free and prior informed
consent to the ICC/IPPs; but it failed to do so. More
specially noted by the court is the excess in authority
exercised by the respondent—since they allowed
delineation and recognition of ancestral domain claim by
mere agreement and compromise; such power cannot be
found in IPRA or in any law to the effect.
3rd issue: With regard to the provisions of the MOA-AD,
there can be no question that they cannot be all
accommodated under the present Constitution and laws.
Not only its specific provisions but the very concept
underlying them:
 On matters of the Constitution.
Association as the type of relationship governing
between the parties. The parties manifested that in
crafting the MOA-AD, the term association was adapted
from the international law. In international law,
association happens when two states of equal power
voluntarily establish durable links i.e. the one state, the
associate, delegates certain responsibilities to the other,
principal, while maintaining its international status as
state; free association is a middle ground between
integration and independence. The MOA-AD contains
many provisions that are consistent with the international
definition of association which fairly would deduced that
the agreement vest into the BJE a status of an
associated state, or at any rate, a status closely
approximating it. The court vehemently objects because
the principle of association is not recognized under the
present Constitution.
 On the recognition of the BJE entity as a state.
The concept implies power beyond what the
Constitution can grant to a local government; even
the ARMM do not have such recognition; and the
fact is such concept implies recognition of the
 associated entity as a state. There is nothing in
the law that contemplate any state within the
jurisdiction other than the Philippine State, much
less does it provide for a transitory status that
aims to prepare any part of Philippine territory for
independence. The court disagrees with the
respondent that the MOA-AD merely expands the
ARMM. BJE is a state in all but name as it meets
the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population, a
defined territory, a government, and a capacity to
enter into relations with other states. As such the
MOA-AD clearly runs counter to the national
sovereignty and territorial integrity of the Republic.
 On the expansion of the territory of the BJE. The
territory included in the BJE includes those areas
who voted in the plebiscite for them to become
part of the ARMM. The stipulation of the
respondents in the MOA-AD that these areas need
not participate in the plebiscite is in contrary to the
express provision of the Constitution. The law
states that that "[t]he creation of the autonomous
region shall be effective when approved by a
majority of the votes cast by the constituent units
in a plebiscite called for the purpose, provided that
only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the
autonomous region." Clearly, assuming that the
BJE is just an expansion of the ARMM, it would
still run afoul the wordings of the law since those
included in its territory are areas which voted in its
inclusion to the ARMM and not to the BJE.
 On the powers vested in the BJE as an entity. The
respondents contend that the powers vested to the
BJE in the MOA-AD shall be within sub-paragraph
9 of sec 20, art. 10 of the constitution and that a
mere passage of a law is necessary in order to
vest in the BJE powers included in the agreement.
The Court was not persuaded. SC ruled that such
conferment calls for amendment of the
Constitution; otherwise new legislation will not
concur with the Constitution. Take for instance the
treaty making power vested to the BJE in the
MOA-AD. The Constitution is clear that only the
President has the sole organ and is the country’s
sole representative with foreign nation. Should the
BJE be granted with the authority to negotiate with
other states, the former provision must be
amended consequently. Section 22 must also be
amended—the provision of the law that promotes
national unity and development. Because clearly,
associative arrangement of the MOA-AD does not
epitomize national unity but rather, of semblance
of unity. The associative ties between the BJE and
the national government, the act of placing a
portion of Philippine territory in a status which, in
international practice, has generally been a
 preparation for independence, is certainly not
conducive to national unity.
 On matters of domestic statutes.
o Provisions contrary to the organic act of ARMM. RA
9054 is a bar to the adoption of the definition of
Bangsamoro people used in the MOA-AD. Said law
specifically distinguishes between the Bangsamoro
people and the Tribal peoples that is contrary with the
definition of the MOA-AD which includes all indigenous
people of Mindanao.
o Provisions contrary to the IPRA law. Also, the
delineation and recognition of the ancestral domain is a
clear departure from the procedure embodied in the IPRA
law which ironically is the term of reference of the MOA-
AD.
 On matters of international law.
The Philippines adopts the generally accepted principle
of international law as part of the law of the land. In
international law, the right to self-determination has long
been recognized which states that people can freely
determine their political status and freely pursue their
economic, social, and cultural development. There are
the internal and external self-determination—internal,
meaning the self-pursuit of man and the external which
takes the form of the assertion of the right to unilateral
secession. This principle of self-determination is viewed
with respect accorded to the territorial integrity of existing
states. External self-determination is only afforded in
exceptional cases when there is an actual block in the
meaningful exercise of the right to internal self-
determination. International law, as a general rule,
subject only to limited and exceptional cases, recognizes
that the right of disposing national territory is essentially
an attribute of the sovereignty of every state.
On matters relative to indigenous people, international
law states that indigenous peoples situated within states
do not have a general right to independence or secession
from those states under international law, but they do
have rights amounting to what was discussed above as
the right to internal self-determination; have the right to
autonomy or self-government in matters relating to their
internal and local affairs, as well as ways and means for
financing their autonomous functions; have the right to
the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or
acquired.
Clearly, there is nothing in the law that required the State
to guarantee the indigenous people their own police and
security force; but rather, it shall be the State, through
police officers, that will provide for the protection of the
people. With regards to the autonomy of the indigenous
people, the law does not obligate States to grant
indigenous peoples the near-independent status of a
state; since it would impair the territorial integrity or
political unity of sovereign and independent states.
 On the basis of the suspensive clause.
o It was contented by the respondents that grave abuse
of discretion cannot be had, since the provisions assailed
as unconstitutional shall not take effect until the
necessary changes to the legal framework are effected.
The Court is not persuaded. This suspensive clause runs
contrary to Memorandum of Instructions from the
President stating that negotiations shall be conducted in
accordance to the territorial integrity of the country—such
was negated by the provision on association incorporated
in the MOA-AD. Apart from this, the suspensive clause
was also held invalid because of the delegated power to
the GRP Peace panel to advance peace talks even if it
will require new legislation or even constitutional
amendments. The legality of the suspensive clause
hence hinges on the query whether the President can
exercise such power as delegated by EO No.3 to the
GRP Peace Panel. Well settled is the rule that the
President cannot delegate a power that she herself does
not possess. The power of the President to conduct
peace negotiations is not explicitly mentioned in the
Constitution but is rather implied from her powers as
Chief Executive and Commander-in-chief. As Chief
Executive, the President has the general responsibility to
promote public peace, and as Commander-in-Chief, she
has the more specific duty to prevent and suppress
rebellion and lawless violence.
As such, the President is given the leeway to explore, in
the course of peace negotiations, solutions that may
require changes to the Constitution for their
implementation. At all event, the president may not, of
course, unilaterally implement the solutions that she
considers viable; but she may not be prevented from
submitting them as recommendations to Congress, which
could then, if it is minded, act upon them pursuant to the
legal procedures for constitutional amendment and
revision.
While the President does not possess constituent powers
- as those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative
and referendum - she may submit proposals for
constitutional change to Congress in a manner that does
not involve the arrogation of constituent powers. Clearly,
the principle may be inferred that the President - in the
course of conducting peace negotiations - may validly
consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally
implement them without the intervention of Congress, or
act in any way as if the assent of that body were
assumed as a certainty. The President’s power is limited
only to the preservation and defense of the Constitution
but not changing the same but simply recommending
proposed amendments or revisions.
o The Court ruled that the suspensive clause is not a
suspensive condition but is a term because it is not a
question of whether the necessary changes to the legal
framework will take effect; but, when. Hence, the
stipulation is mandatory for the GRP to effect the
changes to the legal framework –which changes would
include constitutional amendments. Simply put, the
suspensive clause is inconsistent with the limits of the
President's authority to propose constitutional
amendments, it being a virtual guarantee that the
Constitution and the laws of the Republic of the
Philippines will certainly be adjusted to conform to all the
"consensus points" found in the MOA-AD. Hence, it must
be struck down as unconstitutional.
within a state, but in their brazen willingness to guarantee
that Congress and the sovereign Filipino people would
give their imprimatur to their solution.Upholding such an
act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment
process is through an undue influence or interference
with that process.

 On the concept underlying the MOA-AD.

While the MOA-AD would not amount to an international

agreement or unilateral declaration binding on the
Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally
defective. The MOA-AD not being a document that can
bind the Philippines under international law
notwithstanding, respondents' almost consummated act
of guaranteeing amendments to the legal framework is,
by itself, sufficient to constitute grave abuse of discretion.
The grave abuse lies not in the fact that they considered,
as a solution to the Moro Problem, the creation of a state