G.R. No. 183591 PROVINCE OF NORTH COTABATO v. THE GOVERNMENT OF THE PHILIPPINES Summarized by Manu and Kim This is a consolidation of a number of cases regarding the issues, mostly in relation to its constitutionality, surrounding the Memorandum of Agreement on the Ancestral Domain (MOA-AD) between the Government of the Philippines (GPR) and the Moro Islamic Liberation Front (MILF) 1 and the issue regarding the extent of the powers of the President in pursuing the peace process. The following are the cases that have been consolidated:
G.R. 183591 – (23 July 2008) the Province of North Cotabato and Vice Governor Emmanuel Piñol (Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and TRO) sought to compel respondents to disclose the MOA-AD and attachments, prohibit the signing, hold a public consultation and declare the MOA-AD UNCONSTITUTIONAL G.R. 183752 – the City of Zamboanga (Mandamus and Prohibition and similar injunctive reliefs) prayed that Zamboanga City be excluded from the Bangsamoro Homeland and/or Bangasmoro Judicial Entity (BJE) and that the MOA-AD be declared null and void G.R. 183893 – City of Iligan (Injunction and Declaratory Relief) sought to enjoin respondents from signing the MOA-AD and if it has been signed, from implementing it. Additionally impleaded ES Eduardo Ermita as respondent. G.R. 183951 - the Province of Zamboanga del Norte et al (petition for Certiorari, Mandamus and Prohibition), prayed to declare null and void the MOA-AD and without operative effect and those respondents enjoined from executing the MOA-AD G.R. 183962 – Maceda, Binay, Pimentel III filed a petition for Prohibition, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-AD as well as to nullify the MOA-AD for being unconstitutional and illegal. Additionally impleaded as responded the MILF Peace Negotiating Panel (represented by Chairman Iqbal. Various parties moved to intervene and were granted to file their petitions/comments in-intervention.
Important People:
Aforementioned petitioners and respondents Hermogenes Esperon Presidential Adviser on the Peace Process (PAPP) GRP Peace Panel on Ancestral Domain
FACTS (In order of chronological events) AND AN OVERVIEW OF THE MOA-AD 1.
1996 – the beginning of the long process of GRP-MILF peace negotiations
2.
18 July 1997 – the GRP and the peace panel signed the Agreement on the General Cessation of Hostilities
3.
27 August 1998 – signed the General Framework of Agreement of Intent
4.
1999 to early 2000 – numerous municipalities in Central Mindanao were attacked by the MILF which affected the peace negotiations; MILF took control of the town hall in Kauswagan, Lanao del Norte in March 2000 and in response, then President Estrada declared an “all-out-war” against the MILF
5.
2001 – President GMA assumed office and suspended the military offense against the MILF and sought a resumption of the peace negotiations; MILF was first apprehensive but were convinced when GMA asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince them, the MILF convened its Central Committee seriously to discuss the matter and eventually met with the GRP
6.
28 February 2001 – GRP Negotiating Panel was established through Executive Order No. 3 s. 2001
1 A rebel group established in March 1984 when it splintered, under the leadership of the late Salamat Hashim from the Moro National Liberation Front (MNLF) then headed by Nur Misuari. It separated on the ground of what Salamat perceived to be a manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.
7.
24 March 2001 – parties met in Kuala Lumpur with talks facilitated by the Malaysian Government; parties signed the Agreement on the General Framework and the Resumption of Peace Talks. The MILF thereafter suspended all its military actions.
8.
20-22 June 2001 – formal peace talks held in Tripoli, Libya the outcome of which was the GRP-MILF Tripoli Agreement on Peace Process which contained the following basic principles and agenda on the negotiations: security aspect, rehabilitation aspect, and ancestral domain aspect (this aspect had a colatilla saying that it “shall be discussed further by the Parties in their next meeting”)
9.
5-7 August 2001 – second round of peace talks in Cyberjaya, Malaysia which ended in the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 which led to a ceasefire between parties
10. 7 May 2002 – signed the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001 11. 13 July 2003 – Chairman Salamat Hashim of the MILF passed away and subsequently replaced by Al Haj Murad (previously chair peace negotiator). His position was taken over by Mohagher Iqbal. 12. 2005 – exploratory talks between parties in Malaysia, to draft the MOA-AD 13. 23 July 2008 – the Province of North Cotabato file with the Supreme Court and was docketed as G.R. 183591 14. 04 August 2008 – the Court issued a Temporary Restraining Order (TRO) commanding and directing respondents and agents to cease and desist from formally signing the MOA-AD. Court also required SolGen to submit to the court and petitioners the official copy of the MOA-AD 15. 05 August 2008 – scheduled signing date for the final form of Memorandum of Agreement on the Ancestral Domain Aspect of the Tripoli Agreement on Peace (MOA-AD) 16. 15, 22, 29 August 2008 – cases were heard on oral argument with the following issues discussed: a.
b. c. d. e.
f. g.
Whether the petitions have become moot and academic i. Insofar as mandamus is concerned in view of the disclosure of the official copies of the MOA-AD ii. Insofar as prohibition aspect is concerned if consultation has become fait accompli with the finalization of the draft Whether the constitutionality and legality of the MOA is ripe for adjudication; Whether respondent committed grave abuse of discretion amounting to excess or lack of jurisdiction when it negotiated and initiated the MOA vis-à-vis ISSUES (d) and (e) Whether there is a violation of the people’s right to information. If yes, whether prohibition is an appropriate remedy Whether by signing the MOA the GRP would be binding itself to: i. Create and recognize the BJE as a separate state/ juridical, territorial, political subdivision not recognized by law ii. Revise or amend the constitution and existing laws to conform to the MOA-AD iii. Concede/ recognize claim of MILF for ancestral domain in violation of IPRA If yes, whether the Executive Branch has the authority to bind the GRP Whether the inclusion of North Cotabato, Zamboanga City, Iligan and Isabela and Linamon, Lanao del Norte in the Bangsamoro Homeland is a justiciable question Whether not signing the MOA derogates any valid prior commitment of the GRP
17. 19 August 2008 - Maceda, Binay, Pimentel III filed with the SC 18. 19 August 2008 – Respondents (through Manifestation by Motion) stated that the Executive Department shall thoroughly review the MOA-AD and pursue further negotiations to address the issues raised and thus moved to dismiss the cases OVERVIEW OF THE MOA-AD
Parties: GRP (used interchangeably with CENTRAL GOVERNMENT) and the MILF Main body is divided into four (4) strands: CONCEPTS AND PRINCIPLES, TERRITORY, RESOURCES, AND GOVERNANCE
CONCEPTS AND PRINCIPLES o Defines Bangsamoro People as natives or original inhabitants of Mindanao and adjacent islands (including Palawan and Sulu archipelago) at the time of conquest/ colonization and their descendants and spouses o Not only Moros but included indigenous peoples of Mindanao and adjacent islands (adds that the freedom of choice of the IPs shall be respected) o MOA-AD proceeds to refer to the “Bangsamoro Homeland” – the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation; both parties acknowledge that ancestral domain does not form part of the public domain. o Bangsamoro people have a right to self-governance o Describes Bangsamoro as the “First Nation” – suggests exclusive entitlement to that designation (departs from Canadian usage – used to refer to their indigenous collectively as First Nations – plural)
TERRITORY o Land mass, maritime, terrestrial, fluvial, alluvial including aerial domain and atmospheric space embracing Mindanao- Sulu-Palawan geographic region o Present geographic area of ARMM including certain Municipalities in Lanao del Norte voted for in the 2001 plebiscite o Outside this, the BJE is to cover other provinces and municipalities grouped into Category A (to be subjected to plebiscite not later than 12 months after MOA-AD signing) and B [subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement – the Comprehensive Compact] o BJE shall have jurisdiction (did not say joint with GRP) over all natural resources within its internal waters (15km from coastline) and territorial waters from beyond this up to baselines of RP – South East and South West of mainland Mindanao; within territorial waters, there is joint jurisdiction with GRP o Indicates sharing of minerals on the territorial waters in favor of BJE. Nothing said about sharing the minerals in the internal waters
RESOURCES o BJE is free to enter into any economic cooperation/ trade relations with foreign countries and can establish foreign trade missions to other countries o External defense remain the duty and obligation of GRP o GRP should take steps to include BJE in international meetings and events such as but not limited to ASEAN events o Exploring, producing, obtaining potential sources of energy jurisdiction and control is under the BJE but in times of national emergency, when public interest requires, the GRP may, for a fixed period and reasonable terms agreed by both parties, assume or direct the operation of such resources o The sharing between the GRP and the BJE of total production pertaining to natural resources is 75:25 in favor of BJE. o BJE may modify or cancel forest concessions, timber licenses, mining concessions, Mineral Production and Sharing Agreements (MPSA) Industrial Forest Management Agreements (IFMA) and the like, granted by the GRP, including those issued by the present ARMM.
GOVERNANCE o Binds parties to invite a multinational third-party to observe and monitor implementation of COMPREHENSIVE COMPACT – a compact to embody the “details for effective enforcement” and “mechanisms and modalities of actual implementation” of the MOA-AD but explicitly says that the participation of the third party shall not in any way affect the relationship of the GRP and BJE
o o
o
Defines relationship of Central Government and BJE as “associative” [take note of this as this will be an issue tackled later on] characterized by shared authority and responsibility Provides that provisions requiring “amendments to the existing legal framework” shall take effect upon signing of the comprehensive compact and upon effecting the aforesaid amendments with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be indicated in the comprehensive compact [take note as the legality of this provision is one of the main points of the controversy – violates Constitution] BJE can build, develop, maintain own institutions (banking, education, legislation, judiciary etc.) details will be discussed in the negotiation of the comprehensive compact
Annexed to the MOA-AD are documents containing the lists and maps of the places included under Categories A and B mentioned under TERRITORY
ISSUES AND HOLDING: I.
WHETHER OR NOT PETITIONS HAVE COMPLIED WITH THE PROCEDURAL REQUIREMENTS FOR THE EXERCISE OF JUDICIAL REVIEW a.
RIPENESS – COURT RULES THAT IT IS RIPE.2 Petitions allege acts or omissions by respondents exceed their authority by violating their duty under EO No. 3, the Constitution and statutes. There is a prima facie case for Certiorari, Prohibition, and Mandamus and thus an actual case for 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 duty of the judiciary to settle the dispute. Concrete acts not necessary; cites Pimentel, Jr. v. Aguirre: “…mere enactment of the questioned law/ approval of the challenged action the dispute is said to have ripened into judicial controversy even without any overt act. Indeed even a singular violation of the Constitution and/or the law is enough to awaken judicial duty.” Also cites Santa Fe Independent School District v. Doe: US SC held that challenge for the constitutionality of the school’s policy on student-led prayers/ speeches before games was ripe even without it happening because it is the policy being challenged, not the concrete acts per se When law or act in question is not yet effective does not negate ripeness; cites New York v. United States: action of New York challenging a radioactive waste policy was ripe in order to avoid the provision’s consequences
b. LOCUS STANDI Province of North Cotabato, Province of Zamboanga del Norte, City of Iligan, City of Zamboanga and petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that they as LGUs would suffer as their territories are to be included in the intended domain of the BJE Petitioners allege that they did not vote for their inclusion Maceda, Binay, Pimentel III would have no standing for their failure to specify that they would have rights that will be denied or that there is a wastage of public funds BUT court grants them standing due to their invocation of the transcendental importance of the issue Intervenors Drilon and Tamayo can be given standing in their claim as tax payers and that government funds will be used to conduct an illegal and unconstitutional plebiscite; transcendental importance argument also gives them standing 2 2. 3. 4. 5. 6.
SOLGEN SAYS: NO JUSTICIABLE CONTROVERSY THAT IS RIPEUnsigned MOA AD is just a list of consensus points for further negotiations Remains to be a proposal that does not create legally demandable rights until the list of operative acts have been complied with He cites the provision on the need for plebiscites (with regard to the additional areas in Annex A and B He also cites that the COMPREHENSIVE CONTRACT is yet to be drafted (with a deadline within 15 months from signing of the MOA-AD) Law or act in question is not yet effective does not negate ripeness Present petitions allege that respondents GRP Panel and PAPP Esperon drafted MOA-AD without consulting LGUs affected is a departure from their mandate under E.O. No. 3
Intervenor Mar Roxas has standing as his premise is that he is a member of the Senate and a citizen (public’s right to be informed on the MOA-AD) and has genuine legal interest in the matter in litigation (personally, we no idea why the last one gives him standing) Intervenors Lopez, Ridao, Gomez, and Buxani failed to allege any proper legal interest in the present petitions Muslim Multi-Sectoral Movement for Peace and Development and Muslim Legal Assistance Foundation may be prejudiced and therefore they have standing c.
II.
MOOTNESS COURT RULES THAT PETITIONS ARE NOT MOOTED3 1. Non-signing and eventual dissolution of the GRP Peace Panel did not moot the petitions. It bears emphasis that the signing did not push through due to the TRO issued by this Court 2. Cannot be mere consensus points given the nomenclature and need to have it initialed by involved parties + far reaching constitutional implications 3. As discussed, there is a commitment to change statutes and possibly amend the constitution in order to conform to the MOA-AD; consequently, present petitions are not confined to the terms and provisions of the MOA-AD but to other on-going and future negotiations and agreements necessary for its realization 4. It is of paramount public interest. WHETHER OR NOT RESPONDENTS HAVE VIOLATED CONSTITUTIONAL AND STATUTORY PROVISIONS ON PUBLIC CONSULTATION AND THE RIGHT TO INFORMATION WHEN THEY NEGOTIATED THE MOA-AD
a.
Constitutional right to information on matters of public concern as provided in Section 7, Article III Bill of Rights as is complimented by Section 284, Article II, Declaration of Principles and State Policies (“splendid symmetry” in the words of Commissioner Blas Ople)
It is a self-executory constitutional right (Legazpi v. Civil Service Commission) There can be no realistic perception and participation by the public of the nation’s problems nor meaningful democratic decision-making if the public is denied access of information of general interest (Baldoza v. Judge Dimaano) The MOA-AD is a matter of public concern, and matters of public concern covered by the right to information contemplates inclusion of steps and negotiations leading to the consummation of the contract/ transaction (Chavez v. PEA) Effectivity of the policy of public disclosure need not wait for a passing of a statute. Respondents cannot point to the absence of an implementing legislation as an excuse in not effecting such policy (merely provided for “reasonable safeguards” in the implementation but not a necessity for the policy to be in effect)
b. Three pertinent laws [EO No. 3, Republic Act No. 7160 (Local Government Code), and Republic Act No. 8371 (IPRA)] animate petitioner’s right to be consulted on the peace agenda corollary to the constitutional right to information and disclosure. E.O. No. 3 1. In the perambulatory clauses (the first WHEREAS clauses in the EO) it is stated that there is a need to enhance contribution of CSOs by institutionalizing people’s participation 3 b. c. d.
Moot and academic argument not applicable if:There is grave violation of constitution Situation is of exceptional character and paramount public interest is involved Constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public Case is capable of repetition yet evading review
4 “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.”
2.
Enumerates responsibilities of the PAPP such as conducting regular dialogues with the National Peace Forum and other peace partners Local Government Code 1. Requires all national offices to conduct consultations before any project or program critical to environment and human ecology which the MOA-AD falls under as it vests ownership of a vast territory to the Bangsamoro people which could result to the diaspora of a great number of inhabitants from the said environment IPRA 1. Entails the observance of prior informed consent of the indigenous cultural communities (ICCs) and indigenous peoples (IPs) (under IPRA) PAPP committed grave abuse of discretion 1. No consultation/ lack of information – cannot invoke “executive privilege” doctrine5 since copies of the MOA-AD were given upon request of the Court anyway 2. Lacked prior consent/ informing of ICCs and indigenous peoples IPs (under IPRA) 3. MOA AD recognition of ancestral domains seems to delineate ancestral domains which IPRA does not grant the Executive Department thus respondents clearly transcended the boundaries of their authority III.
WHETHER OR NOT THE CONTENTS OF THE MOA-AD ARE IN VIOLATION OF THE CONSTITUTION AND STATUTES a.
MOA-AD is inconsistent with the Constitution and Laws as presently worded. Powers of BJE exceed those granted to any LGU under present laws The international law concept of association is discussed in length as it is envisioned to be the relationship between the BJE and the Central Government6 Quotes Keitner and Reisman (authors of Free Association: The United States Experience): [a]n association is formed when two states of unequal power voluntary establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. xxx (Emphasis and underscoring supplied) Free association is understood as an international association between sovereigns The MOA-AD contains many provisions which are consistent with the international legal concept of association7 1. BJE’s capacity to enter into economic and trade relations with foreign countries 2. Commitment of the Central Government to ensure participation of BJE in ASEAN events and UN agencies 3. BJE’s right to participate in Philippine official missions bearing on negotiation of border agreements 4. Sharing of revenues 5. These resemble rights of governments of the Federated States of Micronesia (an example of an associated state in the US) Concept of ASSOCIATION is not recognized in our Constitution
5 This doctrine means the non-disclosure of sensitive information by the Executive, as regards, for example, national security 6 “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 …”
7 Such as the BJE’s capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE’s participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Centre
1. 2.
No province, city or municipality has an “associative” relationship with the national government Court says: “even the mere concept of animating many of the MOA-AD’s provisions already require for the amendment of constitutional provisions, such as in Article X8”
It violates of a number of articles in the Constitution 1.
Article X, Section 20 (defines the powers of autonomous regions) Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; xxx (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Underscoring supplied)
2.
It is only the President who has the power to enter into treaties 9 however, paragraph 3 under RESOURCES in the MOA-AD states that “the BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided however that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines x x x”
3.
Article II, Section 22 of the Constitution must also be amended to effect the scheme envisioned in the MOA-AD. “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development” Court says that 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.
MOA-AD is also not in consonance with a number of statutes. 1.
Article X Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of “Bangsamoro people” used in the MOA MOA-AD lumps together the identities of the Bangsamoro with the other indigenous peoples living in Mindanao (the Organic Act of the ARMM distinguishes between Bangsa Moro people and Tribal peoples)
8 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 xxx within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.
9 Pimentel v. Executive Secretary instructs:In our system of government, the President, being the head of state is regarded as the sole organ
and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect x x x the President is vested with authority to deal with foreign states and governments x x x In the realm of treaty-making, the President has the sole authority to negotiate with other states.
2.
Chapter VII Section 52 of the IPRA lays down a detailed procedure in the delineation and recognition of ancestral domains which is not what is in the MOA-AD MOA-AD simply states in Paragraph 1 TERRITORY, “[t]he Bangsamoro homeland and historic territory refer to the land mass as well as the maritime x x x embracing the Mindanao-Sulu-Palawan geographic region.”
The “suspensive clause” in the MOA-AD is UNCONSTITUTIONAL. 1.
Paragraph 7 in GOVERNANCE section of the MOA-AD states: “7. Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon effecting the necessary changes to the legal framework with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.”
2.
Court opines that this stipulation does not bear a mark of a “suspensive” condition – defined in civil law as a future and uncertain event – but of a term. It is not a question of whether the necessary changes to the legal framework will be effected but WHEN. There is no uncertainty, thus pursuant to this, it is mandatory for the GRP to effect the changes to the legal framework. This is inconsistent with the limits of the President’s authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and other laws will certainly be adjusted to conform to the MOA-AD.
3.
Upholding such would be authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention or the people themselves through initiative because the only way that the Executive can guarantee these amendments is through undue influence and interference with the legislative process. Thus, it should be struck down as UNCONSTITUTIONAL.
VERDICT: 1. 2.
Respondent’s motion to dismiss is DENIED. Main and intervening petitions are 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.
LAWS CITED: Executive Order No. 3 Defining Policy and Administrative Structure for Government’s Comprehensive Peace Efforts The 1987 Philippine Constitution Indigenous People’s Rights Act (IPRA) (R.A. 8371) Local Government Code (R.A. 7160)
