EN BANC Promulgated:
I.
FACTUAL ANTECEDENTS OF THE PETITIONS
October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVER GOVERNO NOR R JESUS JESUS SACDA SACDALAN LAN and/o and/orr VICE-G VICE-GOVE OVERN RNOR OR EMMANUEL PIÑOL, for and in his own behalf, Petitioners, - versus THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present present and duly-app duly-appoint ointed ed Presiden Presidential tial Adviser on the Peace Peace Proce Process ss (OPAPP (OPAPP)) or the so-ca so-calle lled d Offic Office e of the Presid Presiden entia tiall Adviser on the Peace Process, Respondents. And many intervenors --------------------------DECISION CARPIO MORALES, J.:
On August August 5, 2008, the Government 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 (MOAAD) Aspect of the GRP-MILF Tripoli Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The MILF is a rebel group which was established in March 1984 when when,, unde underr the leade leadersh rship ip of the late late Salam Salamat at Hash Hashim, im, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.[1] The signing of the MOA-AD between the GRP and the MILF was was not not to mater ateria iali lize ze, howe upon moti motion on of howeve verr, for for upon petitioners, specifically those who filed their cases before the Courtt issu issued ed a sche schedu dule led d sign signin ing g of the the MOAMOA-AD AD,, this this Cour Temporary Temporary Restraining Order enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the conclud concluding ing of several several prior agreeme agreements nts between between the two part partie iess begin eginni nin ng in 1996, 996, when when the the GRPGRP-MI MILF LF peac peace e Subject of these consolidated cases is the extent of the powers of negotiations negotiations began. On July 18, 1997, 1997, the GRP and MILF Peace Peace the Presiden Presidentt in pursuin pursuing g the peace process. process. While the facts facts Panels signed the Agreement on General General Cessation Cessation of Hostilities. surroun surrounding ding this controve controversy rsy center on the armed armed conflict conflict in The follow following ing year year,, they they signe signed d the Gene General ral Framew Framework ork of Minda Mindana nao o betwe between en the gove govern rnme ment nt and and the Moro Moro Islam Islamic ic Agreement of Intent on August 27, 1998. Liberation Front (MILF), the legal issue involved has a bearing on all areas in the country where there has been a long-standing The Solicitor General, who represents respondents, summarizes armed armed conflic conflict. t. Yet agai again, n, the Court Court is tasked tasked to perfor perform m a the MOA-AD by stating that the same contained, among others, delicate balancing balancing act. It must uncompromisingly uncompromisingly delineate delineate the the commitm commitment ent of the parties parties to pursue pursue peace peace negotia negotiation tions, s, bounds bounds within which which the Preside President nt may lawfully exercise exercise her protect and respect human rights, negotiate with sincerity in the discretion, but it must do so in strict adherence to the Constitution, resolution and pacific settlement of the conflict, and refrain from lest its ruling unduly restricts the freedom of action vested by that the use of threat or force to attain undue advantage while the same Constitution in the Chief Executive precisely to enable her peace negotiations on the substantive agenda are on-going.[2] to pursue the peace process effectively.
The parties parties met in Kuala Kuala Lumpur Lumpur on March March 24, 2001, 2001, with the talks being facilitated by the Malaysian government, the parties sign signin ing g on the the same same date date the the Agre Agreem emen entt on the the Gene Genera rall Framework for the Resumption Resumption of Peace Talks Talks Between the GRP and the the MILF. MILF. The MILF MILF therea thereafter fter suspe suspende nded d all its military military actions.[5] Formal Formal peace talks between the parties parties were held in Tripoli, ripoli, Libya from June 20-22, 2001, the outcome of which was the GRP-MI GRP-MILF LF Tripoli ripoli Agree Agreemen mentt on Peace Peace (Tripoli Agreement Agreement containin ning g the basic basic princi principle ples s and agenda agenda on the 2001) contai foll follow owin ing g aspe aspect cts s of the the nego negoti tiat atio ion: n: Secu Securi rity ty Aspec Aspect, t, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed “that the same be discussed further by the Parties in their next meeting.”
A second round of peace talks was held in Cyberjaya, Malaysia on Aug August 5-7, -7, 2001 which ich ended with ith the the sign igning ing of the the Impleme Implementin nting g Guidelin Guidelines es on the Security Security Aspect Aspect of the Tripol Tripolii Agree Agreeme ment nt 2001 2001 leadin leading g to a ceas ceasefi efire re status status betwe between en the parties. This was followed by the Implementing Implementing Guidelines Guidelines on the Humanit Humanitaria arian n Rehabili Rehabilitatio tation n and Develop Developmen mentt Aspects Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Malaysia. Nonetheless, Nonetheless, there were many incidence incidence of violence between government forces and the MILF from 2002 to 2003.
of public public concern concern,, petition petitioners ers seek seek to compel compel respond respondents ents to disclose and furnish them the complete and official copies of the MOA-AD MOA-AD includin including g its attachm attachments ents,, and to prohibi prohibitt 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. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.[10] This initial petition was followed by another one who likewise pray for similar injunctive reliefs, in the alternative, that the MOA-AD be declared null and void. By Resolution of August 4, 2008, the Court issued a Temporary Temporary Restraining Order commanding and directing public respondents and their agents to cease and desist from formally signing the MOA-AD.[ MOA-AD.[13] 13] The Court Court also require required d the Solicitor Solicitor General General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD,[14] to which she complied.[15] Meanwh Meanwhile, ile, the City of Iligan[16 Iligan[16]] filed a petition petition for Injuncti Injunction on and/or Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that the MOA-AD be declared declared unconstitutional. unconstitutional. Petitioners herein herein addition additionally ally implead implead Executive Executive Secretary Secretary Eduardo Eduardo Ermita Ermita as respondent.
The Provinc Province e of Zamboa Zamboanga nga del Norte,[1 Norte,[17] 7] Governo Governorr Rolando Rolando 2005, severa severall explor explorato atory ry talks talks were were held held betwee between n the Yebes In 2005, ebes,, Vice Vice-Go -Gove vern rnor or Franci Franciss Olvis, Olvis, Rep. Rep. Cecil Cecilia ia Jalos Jalosjos jos-parties in Kuala Lumpur, eventually leading to the crafting of Carre Carreon on,, Rep. Rep. Cesar Cesar Jalos Jalosjos jos,, and and the memb members ers[18 [18]] of the the draft MOA-AD in its final form, which, which, as mentioned, mentioned, was Sanggun Sangguniang iang Panlala Panlalawiga wigan n of Zamboan Zamboanga ga del Norte Norte filed filed on set to be signed last August 5, 2008. Augu August st 15, 15, 2008 2008 a peti petiti tion on for for Cert Certio iora rari ri,, Mand Mandam amus us and and Prohibition,[19] Prohibition,[19] docketed docketed as G.R. No. 183951. 183951. They pray, pray, inter II. Statement of the proceedings alia, that the MOA-AD be declared null and void and without operative effect, and that respondents be enjoined from executing On July 23, 2008, 2008, the Province Province of North North Cotabato Cotabato[8] [8] and ViceVice- the MOA-AD. Governor Emmanuel Piñol filed a petition, docketed as G.R. No. 1835 183591 91,, for Mand Mandam amus us and and Prohib Prohibiti ition on with with Praye Prayerr for the On Augu August st 19, 19, 2008, 2008, Ernes Ernesto to Maced Maceda, a, Jejom Jejomar ar Binay Binay,, and and Issua Issuanc nce e of Writ Writ of Prelim Prelimina inary ry Injun Injuncti ction on and and Tempo emporar raryy Aquilino Pimentel III filed a petition for Prohibition,[20] docketed as Restraining Order.[9] Order.[9] Invoking the right right to information on matters matters G.R. G.R. No. No. 1839 183962 62,, pray prayin ing g for for a judg judgme ment nt proh prohib ibit itin ing g and and
permane permanently ntly enjoinin enjoining g respond respondents ents from formally formally signing signing and executin executing g the MOA-AD MOA-AD and or any other agreeme agreement nt derived derived therefrom or similar thereto, and nullifying the MOA-AD for being uncons unconstitut titutiona ionall and illegal. illegal. Petition Petitioners ers herein herein additiona additionally lly implea implead d as respo respond nden entt the MILF MILF Peac Peace e Nego Negotia tiatin ting g Pane Panell represented by its Chairman Mohagher Iqbal. Various parties moved to intervene and were granted leave of
includ including ing public public cons consult ultati ation on unde underr Repu Republi blicc Act Act No. No. 7160 7160 (LOCAL GOVERNMENT CODE OF 1991)[;] If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy; 5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself
court to file their petitions-/comments-in-intervention. By subs subseq eque uent nt Reso Resolu luti tion ons, s, the the Cour Courtt orde ordere red d the the consolidation of the petitions. Respondents filed Comments on
the petitions, while some of petitioners submitted their respective Replies. The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues: 1. Whether the petitions have become moot and academic (i) insofar as the mandamus mandamus aspect aspect is concerned concerned,, in view of the disclosure of official copies of the final draft of the Memorandum of Agreement (MOA); and (ii) (ii) inso insofa farr as the the proh prohib ibit itio ion n aspe aspect ct invo involv lvin ing g the the Loca Locall Gove Govern rnme ment nt Unit Unitss is conc concer erne ned, d, if it is cons consid ider ered ed that that consultation has become fait accompli with the finalization of the draft; 2. Whether the constitutiona constitutionality lity and the legality legality of the MOA MOA is ripe for adjudication; 3. Whether Whether respo responde ndent nt Govern Governmen mentt of the the Repub Republic lic of the the Philippin Philippines es Peace Peace Panel Panel committe committed d grave grave abuse abuse of discretio discretion n amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5; 4. Whether there is a violation of the people’s right to information on matters of public concern concern (1987 Constitution, Article III, Sec. 7) unde underr a state state policy policy of full full disclo disclosu sure re of all its trans transac actio tions ns involving involving public interest interest (1987 (1987 Constitu Constitution tion,, Article Article II, Sec. Sec. 28)
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law; b) to revise revise or or amend amend the Constitu Constitution tion and and existin existing g laws laws to conform to the MOA; c) to conced concede e to or recog recognize nize the the claim claim of the the Moro Moro Islamic Islamic Liberation Front for ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), part partic icul ular arly ly Sect Sectio ion n 3(g) 3(g) & Chap Chapte terr VII VII (DEL (DELIN INEA EATI TION ON,, RECOGNITION OF ANCESTRAL DOMAINS)[;] If in the affir affirma mativ tive, e, wheth whether er the the Execu Executiv tive e Branc Branch h has has the autho authority rity to so bind bind the Governm Governmen entt of the Republi Republicc of the Philippines; 6. Whether Whether the the inclus inclusion/ ion/exclu exclusio sion n of the the Province Province of North North Cotab Cotabato ato,, Cities Cities of Zamb Zamboan oanga ga,, Iliga Iligan n and and Isabe Isabela, la, and and the Munic Municipa ipality lity of Linam Linamon on,, Lana Lanao o del del Norte Norte in/fr in/from om the area areass covered by the projected Bangsamoro Homeland is a justiciable question; and 7. Whether desistance from signing the MOA derogates any prior valid valid commitm commitments ents of the Governmen Governmentt of the Republic Republic of the Philippines.[24] III. Overview of the MOA-AD The MOA-AD identifies the Parties to it as the GRP and the MILF. The MOA-AD MOA-AD also also identi identifie fiess as TOR TOR two local local statut statutes es – the the organic organic act for the Autonomo Autonomous us Region Region in Muslim Muslim Mindana Mindanao o
(ARMM)[25 (ARMM)[25]] and the Indigen Indigenous ous Peoples Peoples Rights Rights Act (IPRA),[26] judiciary in a tripartite allocation of power, to assure that the courts and several international law instruments – the ILO Convention will not intrude into areas committed to the other branches of No. No. 169 169 Conc Concer erni ning ng Indi Indige geno nous us and Triba riball Peop People less in government.[56] Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among An actual case or controversy involves involves a conflict of legal rights, an others. assertion of opposite legal claims, susceptible of judicial resolution as distingu distinguishe ished d from a hypothe hypothetica ticall or abstrac abstractt differe difference nce or A. Concepts and Principles dispute. There must be a contrariety contrariety of legal rights rights that can be interp interpret reted ed and and enfor enforce ced d on the basis basis of exist existing ing law and and This strand begins with the statement that it is “the birthright of all jurisprudence.[57] jurisprudence. [57] The Court can decide the constitutionality of an Moros Moros and and all Indig Indigen enou ouss peop peoples les of Minda Mindana nao o to iden identify tify act or treaty only when a proper case between opposing parties is themselv themselves es and be accepted accepted as ‘Bangsa ‘Bangsamoro moros.’” s.’” It defines defines submitted for judicial determination.[58] “Bangsa “Bangsamoro moro people” people” as the natives natives or original original inhabita inhabitants nts of Mindanao and its adjacent islands including Palawan and the Sulu Related to the requirement of an actual case or controversy controversy is the archipelago at the time of conquest or colonization, and their requirement of ripeness. A question is ripe for adjudication when desc descen enda dants nts wheth whether er mixed mixed or of full full blood blood,, includ including ing their their the act being challenged has had a direct adverse effect on the spouses.[30] individual challenging challenging it.[59] it.[59] For a case to be considered considered ripe ripe for adjudication, it is a prerequisite that something had then been Thus, the concept of “Bangsamoro,” as defined in this strand of accomplished or performed by either branch before a court may the MOA-AD, includes not only “Moros” as traditionally understood come come into the picture,[6 picture,[60] 0] and the petition petitioner er must must allege allege the even by Muslims,[31] but all indigenous indigenous peoples of Mindanao and existence of an immediate or threatened injury to itself as a result its adjacen adjacentt islands. islands. The MOA-AD MOA-AD adds adds that the freedom freedom of of the challenged challenged action.[61] He must show that he has sustained choice choice of indigenou indigenouss peoples peoples shall be respecte respected. d. What this or is immediately in danger of sustaining some direct injury as a freedom of choice consists in has not been specifically defined. result of the act complained of.[62] The MOA-AD proceeds to refer to the “Bangsamoro homeland,” the ownership of which is vested exclusively in the Bangsamoro people people by virtue of their their prior rights rights of occupation. occupation.[32] [32] Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.[33] IV.
PROCEDURAL ISSUES
A.
Ripeness
The Solici Solicitor tor Genera Generall argues argues that that there there is no justic justiciab iable le controv controvers ersy y that that is ripe ripe for judicial judicial review review in the prese present nt petitions, reasoning that The unsigned unsigned MOA-AD is simply a list of
consensus points subject to further negotiations and legislative enactments enactments as well as constitutional constitutional processes aimed at attaining a final peaceful peaceful agreement. agreement. Simply put, the MOA-AD MOA-AD remains to be a prop propos osal al that that does does not not auto automa mati tica cally lly crea create te lega legally lly demandable rights and obligations until the list of operative acts required have been duly complied with. x x x
The The powe powerr of judi judici cial al revi review ew is limi limite ted d to actu actual al case casess or xxxx controversies.[54] controversies.[54] Courts decline decline to issue advisory opinions opinions or to resolve resolve hypothet hypothetical ical or feigned feigned problem problems, s, or mere mere academ academic ic The Solicitor General’s arguments fail to persuade. questio questions.[ ns.[55] 55] The limitation limitation of the power of judicial judicial review review to actual cases and controversies defines the role assigned to the
Concrete acts under the MOA-AD are not necessary to render the present controversy controversy ripe. In Pimentel, Jr. v. v. Aguirre,[65] this Court held:
For a party to have locus standi, standi, one must allege “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of x x x [B]y the mere enactment of the questioned law or issues upon which the court so largely depends for illumination of the approval of the challenged action, the dispute is difficult constitutional questions.”[78] said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough to awaken judicial duty. xxxx By the same token, when an act of the President, who in our constitu constitutiona tionall scheme scheme is a coequa coequall of Congres Congress, s, is serious seriously ly alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of the courts.[66]
B. Mootness
Respondents Respondents insist that the present petitions have been rendered rendered moot with the satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that “[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA.”[92] Petitions not mooted
In fact fact,, as what what will will,, in the the main main,, be disc discus usse sed, d, ther there e is a commitm commitment ent on the part of respond respondent entss to amend amend and effect That the law or act in question is not yet effective does not negate necess necessary ary change changess to the existing existing legal legal framewor frameworkk for certain certain ripeness provisio provisions ns of the MOA-AD MOA-AD to take effect. effect. Conseq Consequen uently tly,, the present petitions are not confined to the terms and provisions of The present petitions allege that respondents GRP Panel and the MOA-AD, but to other on-going and future negotiations and PAPP APP Espe Espero ron n draf drafte ted d the the term termss of the the MOAMOA-AD AD with withou outt agreements necessary for its realization . The petitions petitions have have not, not, consulting the local government units or communities affected, nor therefore, been rendered moot and academic simply by the public informing them of the proceedings. As will be discussed in greater greater disclosure of the MOA-AD,[102] the manifestation that it will not detail later, such omission, by itself, constitutes a departure by be sign signed ed as well well as the disban disbandin ding g of the GRP Panel Panel not not respondents from their mandate under E.O. No. 3. withstanding. Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that
V.
SUBSTANTIVE ISSUES
“any provision provisionss of the MOA-AD requiring requiring amendmen amendments ts to the existing legal framework shall come into force upon the signing of a Compreh Comprehens ensive ive Compact Compact and upon upon effectin effecting g the necess necessary ary changes to the legal framework,” implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation,
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an asso associ ciat ated ed stat state e or, or, at any any rate rate,, a stat status us clo closely sely approximating it.
in effect effect,, guaran guarantee teed d to the MILF the amendmen amendmentt of the The concept of association is not recognized under the present Constitution. Constitution B. Locus Standi
No prov provin ince ce,, city city,, or muni munici cipa palit lityy, not not even even the the ARMM ARMM,, is recognized recognized under our laws as having an “associative” relationship relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional regional government. 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 that aims aims to prep prepar are e any any part art of Phil Philip ippi pine ne terr territ itor oryy for for independence. The The BJE BJE is a far far more more powe powerf rful ul enti entity ty than than the the autonomous region recognized in the Constitution
It will be observed that the President has authority, as stated in her her oath oath of offi office ce,[ ,[17 178] 8] only only to pres preser erve ve and and defe defend nd the the Constitution. Constitution. Such presidential presidential power does not, however, however, extend extend to allo allowi wing ng her her to chan change ge the the Cons Consti titu tuti tion on,, but but simp simply ly to recommend recommend proposed proposed amendments amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional constitutional amendments and revision, her mere recommendatio tion need not be con constru trued as an unconstitutional act. The “suspensive clause” in the MOA-AD viewed in light of the above-discussed standards Given Given the limite limited d nature nature of the Presi Presiden dent’ t’s s author authority ity to
It is not merely an expanded version of the ARMM, the status of propose constitutional amendments, she cannot guarantee to its relationship with the national government being fundamentally any third party that the required amendments will eventually different from that of the ARMM. Indeed, BJE is a state in all be put in place, nor even be submitted to a plebiscite. The but name as it meets the criteria of a state laid down in the most she could do is submit these proposals as recommendations Montevideo Convention,[154] namely, a permanent population, either to Congress or the people, in whom constituent powers are a defined territory, a government, and a capacity to enter into vested. relations with other states. SUMMARY
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it – which has betrayed itself by its use of the concept of association – runs counter to the national sovereignty and territorial integrity of the Republic. The defining defining concep conceptt underly underlying ing the relation relationship ship between between the natio nationa nall gove governm rnmen entt and and the BJE BJE being being itself itself contr contrary ary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. 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.
The The fail failur ure e of respondents to consult the local government units or communities affec affected ted cons constit titute utess a depa departu rture re by resp respon onde dents nts from from their their mandate under E.O. No. 3. 3. Moreover, Moreover, responden respondents ts exceeded exceeded their authority by the mere act of guaranteeing amendments to the Constitu Constitution. tion. Any alleged alleged violation violation of the Constitut Constitution ion by any branch of government is a proper matter for judicial review. The The peti petiti tion ons s are are ripe ripe for for adju adjudi dica cati tion on..
As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants grants the petitioner petitioners, s, petitioner petitioners-in-i s-in-interv nterventio ention n and intervening intervening respondents respondents the requisite locus standi standi in
keeping with the liberal stance adopted in David v. MacapagalArroyo. Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace
Panel mooted the present petitions, the Court finds that the presen presentt petiti petitions ons provi provide de an except exception ion to the “moot “moot and academic” principle in view of (a) the grave violation of the Constituti Constitution on involved; involved; (b) the exceptional exceptional character character of the situat situation ion and param paramoun ountt public public intere interest; st; (c) the need need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review. The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn drawn up that could could contain contain similar or significa significantly ntly dissimila dissimilar r provisions compared to the original. The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents’ action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.
An esse essent ntia iall elem elemen entt of thes these e twin twin free freedo doms ms is to keep keep a continuing dialogue or process of communication between the government government and the people. people. Corollary to these these twin rights is the design for feedback feedback mechanisms. mechanisms. The right to public consultation was envisioned to be a species of these public rights. At least three pertinent pertinent laws animate animate these constitutional constitutional imperatives and justify the exercise of the people’s right to be consulted on relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum forum for consen consensu sus-b s-buil uildin ding. g. In fact, fact, it is the duty duty of the Presiden Presidential tial Adviser Adviser on the Peace Peace Process Process to conduc conductt regular regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human The people’s right to information on matters of public ecol ecolog ogyy incl includ udin ing g thos those e that that may may call call for for the the evic evicti tion on of a concern under Sec. 7, Article III of the Constitution is in splendid particular group of people residing in such locality, is implemented symmetry with the state policy of full public disclosure of all its therein. The MOA-AD is one peculiar peculiar program that unequivoca unequivocally lly transactions involving public interest under Sec. 28, Article II of and and unil unilat ater eral ally ly vest vestss owne owners rshi hip p of a vast vast terr territ itor oryy to the the the Constitution. Constitution. The right to information information guarantees guarantees the right of Bangsam Bangsamoro oro people, people, which which could could pervasiv pervasively ely and drastica drastically lly the people to demand information, while Section 28 recognizes result result to the dias diaspo pora ra or displa displace ceme ment nt of a grea greatt numb number er of the the duty duty of offi offici cial aldo dom m to give give info inform rmat atio ion n even even if nobo nobody dy inhabitants from their total environment. demand demands. s. The complete complete and effective effective exercis exercise e of the right right to informat information ion necess necessitate itatess that that its complem complementa entary ry provisio provision n on Three, Republic Act No. 8371 or the Indigenous Peoples Rights public disclosure derive the same self-executory nature, subject Act of 1997 provides for clear-cut procedure for the recognition only to reasonable safeguards or limitations as may be provided and delineation of ancestral domain, which entails, among other by law. things, the observance of the free and prior informed consent of the Indige Indigeno nous us Cultu Cultura rall Comm Commun uniti ities/ es/Ind Indige igeno nous us Peop Peoples les.. The contents of the MOA-AD is a matter of paramount public Notably, the statute does not grant the Executive Department or concern involving involving public interest interest in the highest order. order. In declaring any government agency the power to delineate and recognize an that the right to information contemplates steps and negotiations ancestral domain claim by mere agreement or compromise. leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character The invocation of the doctrine of executive privilege as a defense of the agreement. to the the gene genera rall righ rightt to info inform rmat atio ion n or the the spec specif ific ic righ rightt to
consultation consultation is untenable. The various explicit explicit legal provisions fly in the face of executive executive secrecy secrecy.. In any event, event, responden respondents ts effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny.
amendment process is through an undue influence or interference with that process.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, 7160, and Republic Republic Act Act No. 8371. The furtive furtive process 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, capricious, oppressive, arbitrary arbitrary and despotic exercise exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.
amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective.
The MOA-AD cannot be reconciled with the present Constitution and laws. laws. Not only its specific specific provisions provisions but the very concept concept underlying them, namely, the associative relationship envisioned betwe between en the GRP and and the BJE, BJE, are uncon unconsti stitut tution ional, al, for the concept presupposes that the associated entity is a state 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. defect. The inclusion of provisions provisions in the MOAAD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Inst Instru ruct ctio ions ns From From The The Pres Presid iden entt date dated d Marc March h 1, 2001 2001,, address addressed ed to the governme government nt peace panel. panel. Moreove Moreover, r, as the claus clause e is worde worded, d, it virtua virtually lly guara guarante ntees es that that the nece necess ssary ary amendments to the Constitution and the laws will eventually be put in place. place. Neither Neither the GRP Peace Peace Panel Panel nor the President President herself is authorized authorized to make such a guarantee. guarantee. Upholding 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 only way that the Executi Executive ve can can ensu ensure re the outcom outcome e of the
Whil While e the the MOAMOA-AD AD woul would d not not amou amount nt to an inte intern rnat atio iona nall agreeme agreement nt or unilate unilateral ral declara declaration tion binding binding on the Philippin Philippines es respon res ponden dents’ ts’ act of guaran gua rantee teeing ing under under internat internationa ionall law, law,
WHEREFORE, responden respondents’ ts’ motion to dismiss dismiss is DENIED. DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED. The Memorand Memorandum um of Agreement Agreement on the Ancestral Ancestral Domain Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution.
SO ORDERED.
