EN
BANC
THE PROVINCE OF NORTH COTABATO,
duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR 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 and
duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the
so-called Office of the Presidential Adviser on the Peace Process, Respondents. x--------------------------------------------x CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L.
LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident
of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep.
ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, Petitioners, - versus - THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO,
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his
capacity as the Presidential Adviser on Peace Process, Respondents. x--------------------------------------------x THE CITY OF ILIGAN, duly represented by CITY MAYOR
LAWRENCE LLUCH CRUZ, Petitioner, - 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; GEN. HERMOGENES
ESPERON, JR., in his capacity as the present and duly appointed Presidential
Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as
Executive Secretary. Respondents. x--------------------------------------------x THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as
represented by HON. ROLANDO E. YEBES, in his capacity as Provincial Governor,
HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer
of the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON,
Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS,
Congressman, 3rd Congressional District, and Members of the
Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON.
SETH FREDERICK P. JALOSJOS, HON.
FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M.
ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO,
HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA
J. CARREON and HON. LUZVIMINDA E. TORRINO, Petitioners, - versus - THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON.
HERMOGENES ESPERON, in his capacity as the Presidential Adviser of Peace
Process, Respondents. x--------------------------------------------x ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.
PIMENTEL III, Petitioners, - versus - THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and the
MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its
Chairman MOHAGHER IQBAL, Respondents. x--------------------------------------------x FRANKLIN M. DRILON and ADEL ABBAS TAMANO, Petitioners-in-Intervention. x--------------------------------------------x SEN. MANUEL A. ROXAS, Petitioners-in-Intervention. x--------------------------------------------x MUNICIPALITY OF LINAMON duly represented by its Municipal
Mayor NOEL N. DEANO, Petitioners-in-Intervention, x--------------------------------------------x THE CITY OF ISABELA, BASILAN PROVINCE, represented by
MAYOR CHERRYLYN P. SANTOS-AKBAR, Petitioners-in-Intervention. x--------------------------------------------x THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a resident of the
Province of Sultan Kudarat, Petitioner-in-Intervention. x-------------------------------------------x RUY ELIAS LOPEZ, for and in his own behalf and on behalf
of Indigenous Peoples in Mindanao Not Belonging to the MILF, Petitioner-in-Intervention. x--------------------------------------------x CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,
JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of
Palawan, Petitioners-in-Intervention. x--------------------------------------------x MARINO RIDAO and KISIN BUXANI, Petitioners-in-Intervention. x--------------------------------------------x MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), Respondent-in-Intervention. x--------------------------------------------x MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT
(MMMPD), Respondent-in-Intervention. x--------------------------------------------x |
G.R. No. 183591 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, & BRION, JJ. Promulgated: October
14, 2008 G.R.
No. 183752 G.R. No. 183893 G.R. No. 183951 G.R. No. 183962 |
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - -x
D E C I S I O N
CARPIO MORALES,
J.:
Subject of these consolidated cases
is the extent of the powers
of the President in pursuing the peace process. While the facts
surrounding this controversy center on the armed conflict in Mindanao between
the government and the Moro Islamic Liberation Front (MILF), the legal issue
involved has a bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to perform a
delicate balancing act. It must uncompromisingly delineate the bounds within
which the President may lawfully exercise her discretion, but it must do so in
strict adherence to the Constitution, lest its ruling unduly restricts the
freedom of action vested by that same Constitution in the Chief Executive
precisely to enable her to pursue the peace process effectively.
I. FACTUAL
ANTECEDENTS OF THE PETITIONS
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.
The
MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, 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][1]
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.
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. 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.
The
Solicitor General, who represents respondents, summarizes the MOA-AD by stating
that the same contained, among others, the commitment of the parties to pursue
peace negotiations, protect and respect human rights, negotiate with sincerity
in the resolution and pacific settlement of the conflict, and refrain from the
use of threat or force to attain undue advantage while the peace negotiations
on the substantive agenda are on-going.[2][2]
Early
on, however, it was evident that there was not going to be any smooth sailing
in the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the
MILF attacked a number of municipalities in Central Mindanao and, in March
2000, it took control of the town hall of Kauswagan, Lanao del Norte.[3][3]
In response, then President Joseph Estrada declared and carried out an
“all-out-war” against the MILF.
When
President Gloria Macapagal-Arroyo assumed office, the military offensive
against the MILF was suspended and the government sought a resumption of the
peace talks. The MILF, according to a leading MILF member, initially responded
with deep reservation, but when President Arroyo asked the Government of
Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to
return to the negotiating table, the MILF convened its Central Committee to
seriously discuss the matter and, eventually, decided to meet with the GRP.[4][4]
The
parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated
by the Malaysian government, the parties signing on the same date the Agreement
on the General Framework for the Resumption of Peace Talks Between the GRP and
the MILF. The MILF thereafter suspended all its military actions.[5][5]
Formal
peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace
(Tripoli Agreement 2001) containing the basic principles and agenda on the
following aspects of the negotiation: Security
Aspect, 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 August 5-7, 2001
which ended with the signing of the Implementing Guidelines on the Security
Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between
the parties. This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement
2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless,
there were many incidence of violence between government forces and the MILF
from 2002 to 2003.
Meanwhile,
then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was
replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.
Murad’s position as chief peace negotiator was taken over by Mohagher Iqbal.[6][6]
In
2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form,
which, as mentioned, was set to be signed last August 5, 2008.
II. Statement of the proceedings
Before
the Court is what is perhaps the most contentious “consensus” ever embodied in
an instrument – the MOA-AD which is assailed principally by the present
petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly
impleaded as respondents are the GRP Peace Panel on Ancestral Domain[7][7]
and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon,
Jr.
On
July 23, 2008, the Province of North Cotabato[8][8]
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.[9][9]
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. Supplementarily,
petitioners pray that the MOA-AD be declared unconstitutional.[10][10]
This
initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition[11][11]
filed by the City of Zamboanga,[12][12]
Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian
who likewise pray for similar injunctive reliefs. Petitioners herein moreover
pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be
declared null and void.
By
Resolution of August 4, 2008, the Court issued a Temporary Restraining Order
commanding and directing public respondents and their agents to cease and
desist from formally signing the MOA-AD.[13][13]
The Court also required the Solicitor General to submit to the Court and
petitioners the official copy of the final draft of the MOA-AD,[14][14]
to which she complied.[15][15]
Meanwhile,
the City of Iligan[16][16]
filed a petition for Injunction 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 unconstitutional. Petitioners herein additionally
implead Executive Secretary Eduardo Ermita as respondent.
The
Province of Zamboanga del Norte,[17][17]
Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia
Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members[18][18]
of the Sangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari,
Mandamus and Prohibition,[19][19]
docketed as G.R. No. 183951. They pray, inter alia, that the
MOA-AD be declared null and void and without operative effect, and that
respondents be enjoined from executing the MOA-AD.
On
August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed
a petition for Prohibition,[20][20]
docketed as G.R. No. 183962, praying for a judgment prohibiting
and permanently enjoining respondents from formally signing and executing the
MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various
parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include
Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel
Tamano, the City of Isabela[21][21]
and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat[22][22]
and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,[23][23]
Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin
Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario
Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for
Peace and Development (MMMPD) filed their respective Comments-in-Intervention.
By
subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners
submitted their respective Replies.
Respondents,
by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations
to address the issues hurled against it, and thus moved to dismiss the cases.
In the succeeding exchange of pleadings, respondents’ motion was met with
vigorous opposition from petitioners.
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 aspect is concerned, in view of the disclosure of
official copies of the final draft of the Memorandum of Agreement (MOA); and
(ii) insofar
as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli
with the finalization of the draft;
2. Whether
the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether
respondent Government of the Republic of the Philippines Peace Panel committed
grave abuse of discretion 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 (1987 Constitution, Article III, Sec. 7) under a state policy of full
disclosure of all its transactions involving public interest (1987
Constitution, Article II, Sec. 28) including public consultation under Republic
Act No. 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
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 or amend the Constitution and existing laws to conform to the MOA;
c) to
concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES
RIGHTS ACT OF 1997), particularly
Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the
authority to so bind the Government of the Republic of the Philippines;
6. Whether
the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga,
Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from
the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether
desistance from signing the MOA derogates any prior valid commitments of the
Government of the Republic of the Philippines.[24][24]
The
Court, thereafter, ordered the parties to submit their respective Memoranda.
Most of the parties submitted their memoranda on time.
III. Overview of the MOA-AD
As
a necessary backdrop to the consideration of the objections raised in the
subject five petitions and six petitions-in-intervention against the MOA-AD, as
well as the two comments-in-intervention in favor of the MOA-AD, the Court
takes an overview of the MOA.
The
MOA-AD identifies the Parties to it as the GRP and the MILF.
Under
the heading “Terms of Reference” (TOR), the MOA-AD includes not only four
earlier agreements between the GRP and MILF, but also two agreements between
the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement
on the Implementation of the 1976 Tripoli Agreement, signed on September 2,
1996 during the administration of President Fidel Ramos.
The
MOA-AD also identifies as TOR two local statutes – the organic act for
the Autonomous Region in Muslim Mindanao (ARMM)[25][25]
and the Indigenous Peoples Rights Act (IPRA),[26][26]
and several international law instruments – the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries in relation
to the UN Declaration on the Rights of the Indigenous Peoples, and the UN
Charter, among others.
The
MOA-AD includes as a final TOR the generic category of “compact rights
entrenchment emanating from the regime of dar-ul-mua’hada (or territory under
compact) and dar-ul-sulh (or territory under peace agreement)
that partakes the nature of a treaty device.”
During
the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam)
and dar-ul-harb (the Abode of War). The first referred to those
lands where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or ineffective.[27][27]
This way of viewing the world, however, became more complex through the
centuries as the Islamic world became part of the international community of
nations.
As
Muslim States entered into treaties with their neighbors, even with distant
States and inter-governmental organizations, the classical division of the
world into dar-ul-Islam and dar-ul-harb eventually lost its
meaning. New terms were drawn up to describe novel ways of perceiving
non-Muslim territories. For instance, areas like dar-ul-mua’hada (land
of compact) and dar-ul-sulh (land of treaty) referred to
countries which, though under a secular regime, maintained peaceful and
cooperative relations with Muslim States, having been bound to each other by
treaty or agreement. Dar-ul-aman (land of order), on the other
hand, referred to countries which, though not bound by treaty with Muslim
States, maintained freedom of religion for Muslims.[28][28]
It
thus appears that the “compact rights entrenchment” emanating from the regime
of dar-ul-mua’hada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government – the
Philippines being the land of compact and peace agreement – that partake
of the nature of a treaty device, “treaty” being broadly defined as “any
solemn agreement in writing that sets out understandings, obligations, and
benefits for both parties which provides for a framework that elaborates the
principles declared in the [MOA-AD].”[29][29]
The
MOA-AD states that the Parties “HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS,”
and starts with its main body.
The main body of
the MOA-AD is divided into four strands, namely, Concepts and Principles,
Territory, Resources, and Governance.
A. Concepts
and Principles
This
strand begins with the statement that it is “the birthright of all Moros and
all Indigenous peoples of Mindanao to identify themselves and be accepted as
‘Bangsamoros.’” It defines “Bangsamoro
people” as the natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants whether
mixed or of full blood, including their spouses.[30][30]
Thus,
the concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes
not only “Moros” as traditionally understood even by Muslims,[31][31]
but all indigenous peoples of Mindanao and its adjacent islands.
The MOA-AD adds that the freedom of choice of indigenous peoples shall be
respected. What this freedom of choice consists in has not been specifically
defined.
The
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.[32][32]
Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.[33][33]
The
Bangsamoro people are acknowledged as having the right to self-governance,
which right is said to be rooted on ancestral territoriality exercised
originally under the suzerain authority of their sultanates and the Pat a
Pangampong ku Ranaw. The sultanates were described as states or “karajaan/kadatuan” resembling a body
politic endowed with all the elements of a nation-state in the modern sense.[34][34]
The
MOA-AD thus grounds the right to self-governance of the Bangsamoro people on
the past suzerain authority of the sultanates. As gathered, the territory
defined as the Bangsamoro homeland was ruled by several sultanates and,
specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw,
a confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom was
supreme over the others.[35][35]
The
MOA-AD goes on to describe the Bangsamoro people as “the ‘First Nation’ with defined territory and with a system of
government having entered into treaties of amity and commerce with foreign
nations.”
The
term “First Nation” is of Canadian origin referring to the indigenous peoples
of that territory, particularly those known as Indians. In Canada, each of
these indigenous peoples is equally entitled to be called “First Nation,” hence,
all of them are usually described collectively by the plural “First Nations.”[36][36]
To that extent, the MOA-AD, by identifying the Bangsamoro people as “the
First Nation” – suggesting its exclusive entitlement to that
designation – departs from the Canadian usage of the term.
The
MOA-AD then mentions for the first time the “Bangsamoro Juridical Entity” (BJE) to which it grants the
authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the
Bangsamoro.[37][37]
B. Territory
The
territory of the Bangsamoro homeland is described 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.[38][38]
More
specifically, the core of the BJE is defined as the present geographic area
of the ARMM – thus constituting the following areas: Lanao del Sur,
Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this
core also includes certain municipalities of Lanao del Norte that voted for
inclusion in the ARMM in the 2001 plebiscite.[39][39]
Outside
of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each of these areas is to be
subjected to a plebiscite to be held on different dates, years apart from each
other. Thus, Category A areas are to be subjected to a plebiscite not later
than twelve (12) months following the signing of the MOA-AD.[40][40]
Category B areas, also called “Special Intervention Areas,” on the other hand,
are to be subjected to a plebiscite twenty-five (25) years from the signing of
a separate agreement – the Comprehensive Compact.[41][41]
The
Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over
all natural resources within its “internal
waters,” defined as extending fifteen (15) kilometers from the coastline of
the BJE area;[42][42]
that the BJE shall also have “territorial
waters,” which shall stretch beyond the BJE internal waters up to the baselines
of the Republic of the Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial
waters, the BJE and the “Central Government” (used interchangeably with RP)
shall exercise joint jurisdiction, authority and management over
all natural resources.[43][43]
Notably, the jurisdiction over the internal
waters is not similarly described as “joint.”
The
MOA-AD further provides for the sharing
of minerals on the territorial
waters between the Central Government and the BJE, in favor of the latter,
through production sharing and economic cooperation agreement.[44][44]
The activities which the Parties are allowed to conduct on the territorial waters are enumerated, among
which are the exploration and utilization of natural resources, regulation of
shipping and fishing activities, and the enforcement of police and safety
measures.[45][45]
There is no similar provision on the
sharing of minerals and allowed activities with respect to the internal
waters of the BJE.
C. RESOURCES
The
MOA-AD states that the BJE is free to enter into any economic cooperation and
trade relations with foreign countries and shall have the option to establish
trade missions in those countries. Such relationships and understandings,
however, are not to include aggression against the GRP. The BJE may also enter
into environmental cooperation agreements.[46][46]
The
external defense of the BJE is to
remain the duty and obligation of the Central Government. The Central
Government is also bound to “take necessary steps to ensure the BJE’s
participation in international meetings and events” like those of the ASEAN and
the specialized agencies of the UN. The BJE is to be entitled to participate in
Philippine official missions and delegations for the negotiation of border
agreements or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain.[47][47]
With
regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the
jurisdiction and control thereon is to be vested in the BJE “as the party
having control within its territorial jurisdiction.” This right carries the proviso that, “in times of national
emergency, when public interest so requires,” the Central Government may, for a
fixed period and under reasonable terms as may be agreed upon by both Parties,
assume or direct the operation of such resources.[48][48]
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.[49][49]
The
MOA-AD provides that legitimate grievances of the Bangsamoro people arising
from any unjust dispossession of their territorial and proprietary rights,
customary land tenures, or their marginalization shall be acknowledged.
Whenever restoration is no longer possible, reparation is to be in such form as
mutually determined by the Parties.[50][50]
The
BJE may modify or cancel the
forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements
(MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those issued by
the present ARMM.[51][51]
D. Governance
The
MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive
Compact. This compact is to embody the “details for the effective
enforcement” and “the mechanisms and modalities for the actual implementation”
of the MOA-AD. The MOA-AD explicitly provides that the participation of the
third party shall not in any way affect the status of the relationship between
the Central Government and the BJE.[52][52]
The “associative” relationship
between the Central Government
and the BJE
The
MOA-AD describes the relationship of the Central Government and the BJE as “associative,” characterized by
shared authority and responsibility. And it states that the structure of
governance is to be based on executive, legislative, judicial, and
administrative institutions with defined powers and functions in the
Comprehensive Compact.
The
MOA-AD provides that its 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 contained in the Comprehensive Compact. As will be discussed later, much of the
present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain
its own institutions inclusive of civil service, electoral, financial and
banking, education, legislation, legal, economic, police and internal security
force, judicial system and correctional institutions, the details of which
shall be discussed in the negotiation of the comprehensive compact.
As
stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo
Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the
GRP and the MILF, respectively. Notably,
the penultimate paragraph of the MOA-AD identifies the signatories as “the
representatives of the Parties,” meaning the GRP and MILF themselves, and not
merely of the negotiating panels.[53][53] In addition, the signature page of the
MOA-AD states that it is “WITNESSED BY” Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, “ENDORSED BY” Ambassador Sayed
Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary
General and Special Envoy for Peace Process in Southern Philippines, and SIGNED
“IN THE PRESENCE OF” Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP
and Dato’ Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia,
all of whom were scheduled to sign the Agreement last August 5, 2008.
Annexed
to the MOA-AD are two documents containing the respective lists cum maps of the provinces,
municipalities, and barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.
IV. PROCEDURAL
ISSUES
A. Ripeness
The power of judicial review is
limited to actual cases or controversies.[54][54]
Courts decline to issue advisory opinions or to resolve hypothetical or feigned
problems, or mere academic questions.[55][55]
The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the
judiciary in a tripartite allocation of power, to assure that the courts will
not intrude into areas committed to the other branches of government.[56][56]
An
actual case or controversy involves a conflict of legal rights, an assertion of
opposite legal claims, susceptible of judicial resolution as distinguished from
a hypothetical or abstract difference or dispute. There must be a contrariety
of legal rights that can be interpreted and enforced on the basis of existing
law and jurisprudence.[57][57]
The Court can decide the constitutionality of an act or treaty only when a
proper case between opposing parties is submitted for judicial determination.[58][58]
Related
to the requirement of an actual case or controversy is the requirement of
ripeness. A question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it.[59][59]
For a case to be considered ripe for adjudication, it is a prerequisite that
something had then been accomplished or performed by either branch before a
court may come into the picture,[60][60]
and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the challenged action.[61][61]
He must show that he has sustained or is immediately in danger of sustaining
some direct injury as a result of the act complained of.[62][62]
The
Solicitor General argues that there is no justiciable controversy that is ripe
for judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a
list of consensus points subject to further negotiations and legislative
enactments as well as constitutional processes aimed at attaining a final
peaceful agreement. Simply put, the MOA-AD remains to be a proposal that
does not automatically create legally demandable rights and obligations
until the list of operative acts required have been duly complied with. x x x
x x x x
In the cases at bar, it is
respectfully submitted that this Honorable Court has no authority to pass upon
issues based on hypothetical or feigned constitutional problems or interests
with no concrete bases. Considering the preliminary character
of the MOA-AD, there are no concrete acts that could possibly violate
petitioners’ and intervenors’ rights since the acts complained of are mere
contemplated steps toward the formulation of a final peace agreement.
Plainly, petitioners and intervenors’ perceived injury, if at all, is merely
imaginary and illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied)
The
Solicitor General cites[63][63]
the following provisions of the MOA-AD:
TERRITORY
x x x x
2. Toward this end, the Parties
enter into the following stipulations:
x
x x x
d. Without derogating from the
requirements of prior agreements, the Government stipulates to conduct and
deliver, using all possible legal measures, within twelve (12) months following
the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the
list and depicted in the map as Category A attached herein (the “Annex”). The
Annex constitutes an integral part of this framework agreement. Toward this
end, the Parties shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen (15) months from
the signing of the MOA-AD.
x x x x
GOVERNANCE
x x x x
7. The
Parties agree that 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 the signing of a Comprehensive Compact and 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.[64][64]
(Underscoring supplied)
The
Solicitor General’s arguments fail to persuade.
Concrete
acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,[65][65]
this Court held:
x x x [B]y the mere enactment of the
questioned law or the approval of the challenged action, the dispute is 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.
x x x x
By the same token, when an act of
the President, who in our constitutional scheme is a coequal of Congress, is
seriously 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][66]
In
Santa Fe Independent School District v.
Doe,[67][67] the
United States Supreme Court held that the challenge to the
constitutionality of the school’s policy allowing student-led prayers and
speeches before games was ripe for adjudication, even if no public prayer had
yet been led under the policy, because the policy was being challenged as
unconstitutional on its face.[68][68]
That
the law or act in question is not yet effective does not negate ripeness. For
example, in New
York v. United States,[69][69] decided in 1992, the United States
Supreme Court held that the action by the State of New York challenging the
provisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudication
even if the questioned provision was not to take effect until January 1, 1996,
because the parties agreed that New York had to take immediate action to avoid
the provision's consequences.[70][70]
The
present petitions pray for Certiorari,[71][71]
Prohibition, and Mandamus. Certiorari and Prohibition are remedies granted by
law when any tribunal, board or officer has acted, in the case of certiorari,
or is proceeding, in the case of prohibition, without or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.[72][72]
Mandamus is a remedy granted by law when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use or enjoyment of a right or office to
which such other is entitled.[73][73]
Certiorari, Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts
of legislative and executive officials.[74][74]
The authority of the GRP Negotiating
Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28,
2001.[75][75]
The said executive order requires that “[t]he government's policy framework for
peace, including the systematic approach and the administrative structure for
carrying out the comprehensive peace process x x x be governed by this
Executive Order.”[76][76]
The present petitions allege that
respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without
consulting the local government units or communities affected, nor informing
them of the proceedings.
As will be discussed in greater detail later, such omission, by itself, constitutes
a departure by respondents from their
mandate under E.O. No. 3.
Furthermore, the petitions allege
that the provisions of the MOA-AD violate the Constitution. The MOA-AD
provides that “any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal
framework,” implying an amendment of the Constitution to accommodate the
MOA-AD. This stipulation, in effect, guaranteed
to the MILF the amendment of the Constitution. Such act constitutes another violation of its authority. Again, these points will be discussed
in more detail later.
As the petitions allege acts or
omissions on the part of respondent that 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.[77][77]
B. Locus Standi
For
a party to have locus 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 issues upon
which the court so largely depends for illumination of difficult constitutional
questions.”[78][78]
Because
constitutional cases are often public actions in which the relief sought is
likely to affect other persons, a preliminary question frequently arises as to
this interest in the constitutional question raised.[79][79]
When
suing as a citizen, the person
complaining must allege that he has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected
to some burdens or penalties by reason of the statute or act complained of.[80][80]
When the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.[81][81]
For
a taxpayer, one is allowed to sue
where there is an assertion that public funds are illegally disbursed or
deflected to an illegal purpose, or that there is a wastage of public funds
through the enforcement of an invalid or unconstitutional law.[82][82]
The Court retains discretion whether or not to allow a taxpayer’s suit.[83][83]
In
the case of a legislator or member of
Congress, an act of the Executive that injures the institution of Congress
causes a derivative but nonetheless substantial injury that can be questioned
by legislators. A member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.[84][84]
An
organization may be granted standing
to assert the rights of its members,[85][85]
but the mere invocation by the Integrated
Bar of the Philippines or any member of the legal profession of the duty to
preserve the rule of law does not suffice to clothe it with standing.[86][86]
As
regards a local government unit (LGU),
it can seek relief in order to protect or vindicate an interest of its own, and
of the other LGUs.[87][87]
Intervenors,
meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention,[88][88] such as a
legal interest in the matter in litigation, or in the success of either of the
parties.
In
any case, the Court has discretion to relax the procedural technicality on locus
standi, given the liberal
attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,[89][89] where technicalities of procedure were
brushed aside, the constitutional issues raised being of paramount public
interest or of transcendental importance deserving the attention of the Court
in view of their seriousness, novelty and weight as precedents.[90][90]
The Court’s forbearing stance on locus
standi on issues involving constitutional issues has for its purpose the
protection of fundamental rights.
In
not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within
the limits of the Constitution and the laws and have not abused the discretion
given them, has brushed aside technical rules of procedure.[91][91]
In
the petitions at bar, petitioners Province
of North Cotabato (G.R. No. 183591) Province
of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) 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, whether in whole or in part, are to be included in the intended
domain of the BJE. These petitioners allege that they did not vote for their
inclusion in the ARMM which would be expanded to form the BJE territory.
Petitioners’ legal standing is thus beyond doubt.
In
G.R. No. 183962, petitioners Ernesto
Maceda, Jejomar Binay and Aquilino
Pimentel III would have no
standing as citizens and taxpayers for their failure to specify that they would
be denied some right or privilege or there would be wastage of public funds.
The fact that they are a former Senator, an incumbent mayor of Makati City, and
a resident of Cagayan de Oro, respectively, is of no consequence. Considering
their invocation of the transcendental importance of the issues at hand,
however, the Court grants them standing.
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. Their allegation that the
issues involved in these petitions are of “undeniable transcendental
importance” clothes them with added basis for their personality to intervene in
these petitions.
With
regard to Senator Manuel Roxas, his
standing is premised on his being a member of the Senate and a citizen to
enforce compliance by respondents of the public’s constitutional right to be
informed of the MOA-AD, as well as on a genuine legal interest in the matter in
litigation, or in the success or failure of either of the parties. He thus
possesses the requisite standing as an intervenor.
With
respect to Intervenors Ruy Elias Lopez, as
a former congressman of the 3rd district of Davao City, a taxpayer
and a member of the Bagobo tribe; Carlo
B. Gomez, et al., as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as
taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal
interest in the present petitions. Just the same, the Court
exercises its discretion to relax the procedural technicality on locus standi given the paramount public interest in the issues at hand.
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, allege that
they stand to be benefited or prejudiced, as the case may be, in the resolution
of the petitions concerning the MOA-AD, and prays for the denial of the
petitions on the grounds therein stated. Such legal interest suffices to
clothe them with standing.
B. Mootness
Respondents
insist that the present petitions have been 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][92]
In
lending credence to this policy decision, the Solicitor General points out that
the President had already disbanded the GRP Peace Panel.[93][93]
In
David v. Macapagal-Arroyo,[94][94]
this Court held that the “moot and academic” principle not being a magical
formula that automatically dissuades courts in resolving a case, it will decide
cases, otherwise moot and academic, if it finds that (a) there is a grave violation
of the Constitution;[95][95]
(b) the situation is of exceptional character and paramount public interest is
involved;[96][96]
(c) the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public;[97][97]
and (d) the case is capable of repetition yet evading review.[98][98]
Another
exclusionary circumstance that may be considered is where there is a voluntary
cessation of the activity complained of by the defendant or doer. Thus,
once a suit is filed and the doer voluntarily ceases the challenged conduct, it
does not automatically deprive the tribunal of power to hear and determine the
case and does not render the case moot especially when the plaintiff seeks
damages or prays for injunctive relief against the possible recurrence of the
violation.[99][99]
The
present petitions fall squarely into these exceptions to thus thrust them into
the domain of judicial review. The grounds cited above in David are just
as applicable in the present cases as they were, not only in David, but
also in Province of Batangas v. Romulo[100][100] and Manalo v. Calderon[101][101] where the Court similarly
decided them on the merits, supervening events that would ordinarily have rendered
the same moot notwithstanding.
Petitions not
mooted
Contrary
then to the asseverations of respondents, the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel did not moot the present petitions.
It bears emphasis that the signing of the
MOA-AD did not push through due to the Court’s issuance of a Temporary
Restraining Order.
Contrary
too to respondents’ position, the MOA-AD cannot be considered a mere “list of
consensus points,” especially given its nomenclature,
the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications
of these “consensus points,” foremost of which is the creation of the
BJE.
In
fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and
effect necessary changes to the existing legal framework for certain provisions
of the MOA-AD to take effect. Consequently, the 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.
The petitions have not, therefore, been rendered moot and academic simply by
the public disclosure of the MOA-AD,[102][102]
the manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.
Petitions are
imbued with paramount public interest
There
is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the country’s territory and the wide-ranging
political modifications of affected LGUs. The assertion that 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.
Respondents
cite Suplico v. NEDA, et al.[103][103]
where the Court did not “pontificat[e] on issues which no longer legitimately
constitute an actual case or controversy [as this] will do more harm than good
to the nation as a whole.”
The
present petitions must be differentiated from Suplico. Primarily, in Suplico,
what was assailed and eventually cancelled was a stand-alone government
procurement contract for a national broadband network involving a one-time
contractual relation between two parties—the government and a private
foreign corporation. As the issues therein involved specific government
procurement policies and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional
therein, the factual circumstances being peculiar only to the transactions and
parties involved in the controversy.
The MOA-AD is part
of a series of agreements
In
the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out
the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral
Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in
August 2001 and the Humanitarian, Rehabilitation and Development Aspect
in May 2002.
Accordingly,
even if the Executive Secretary, in his Memorandum of August 28, 2008 to the
Solicitor General, has stated that “no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD],” mootness will not set
in in light of the terms of the Tripoli Agreement 2001.
Need to formulate
principles-guidelines
Surely,
the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect
of the Tripoli Agreement 2001, in another or in any form, which could
contain similar or significantly drastic provisions. While the Court notes the
word of the Executive Secretary that the government “is committed to securing
an agreement that is both constitutional and equitable because that is the only
way that long-lasting peace can be assured,” it is minded to render a decision
on the merits in the present petitions to formulate
controlling principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF regarding Ancestral
Domain.
Respondents
invite the Court’s attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes[104][104] in which he stated that the doctrine of “capable of repetition
yet evading review” can override mootness, “provided the party raising it in a
proper case has been and/or continue to be prejudiced or damaged as a direct
result of their issuance.” They contend that the Court must have jurisdiction
over the subject matter for the doctrine to be invoked.
The
present petitions all contain prayers for Prohibition over which this Court
exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP)
is a petition for Injunction and Declaratory Relief, the Court will treat it as
one for Prohibition as it has far reaching implications and raises questions
that need to be resolved.[105][105]
At all events, the Court has jurisdiction over most if not the rest of the
petitions.
Indeed,
the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark
cases.[106][106]
There is a reasonable expectation that petitioners, particularly
the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the
Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again
be subjected to the same problem in the future as respondents’ actions are
capable of repetition, in another or any form.
It
is with respect to the prayers for Mandamus that the petitions have become
moot, respondents having, by Compliance of August 7, 2008, provided this Court
and petitioners with official copies of the final draft of the MOA-AD and its
annexes. Too, intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As
culled from the Petitions and Petitions-in-Intervention, there are basically
two SUBSTANTIVE issues to be resolved, one relating to the manner in which
the MOA-AD was negotiated and finalized, the other relating to its
provisions, viz:
1.
Did respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later
initialed the MOA-AD?
2.
Do the contents of the MOA-AD violate the Constitution and the laws?
On the first Substantive issue
Petitioners
invoke their constitutional right to information on matters of public
concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to
information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.[107][107]
As
early as 1948, in Subido v. Ozaeta,[108][108]
the Court has recognized the statutory right to examine and inspect public
records, a right which was eventually accorded constitutional status.
The
right of access to public documents, as enshrined in both the 1973 Constitution
and the 1987 Constitution, has been recognized as a self-executory
constitutional right.[109][109]
In
the 1976 case of Baldoza v. Hon. Judge Dimaano,[110][110]
the Court ruled that access to public records is predicated on the right of the
people to acquire information on matters of public concern since, undoubtedly,
in a democracy, the pubic has a legitimate interest in matters of social and
political significance.
x
x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be
no realistic perception by the public of the nation’s problems, nor a
meaningful democratic decision-making if they are denied access to information
of general interest. Information is needed to enable the members of society to
cope with the exigencies of the times. As has been aptly observed: “Maintaining
the flow of such information depends on protection for both its acquisition and
its dissemination since, if either process is interrupted, the flow inevitably
ceases.” x x x[111][111]
In
the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the
people in democratic decision-making by giving them a better perspective of the
vital issues confronting the nation[112][112]
so that they may be able to criticize and participate in the affairs of the
government in a responsible, reasonable and effective manner. It is by ensuring
an unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the people.[113][113]
The MOA-AD is a
matter of public concern
That
the subject of the information sought in the present cases is a matter of
public concern[114][114]
faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.[115][115]
In previous cases, the Court found that the regularity of real estate
transactions entered in the Register of Deeds,[116][116]
the need for adequate notice to the public of the various laws,[117][117]
the civil service eligibility of a public employee,[118][118]
the proper management of GSIS funds allegedly used to grant loans to public
officials,[119][119]
the recovery of the Marcoses’ alleged ill-gotten wealth,[120][120]
and the identity of party-list nominees,[121][121]
among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is 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.
Matters
of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing
as to the executory nature or commercial character of agreements, the Court has
categorically ruled:
x
x x [T]he right to information “contemplates inclusion of negotiations
leading to the consummation of the transaction.” Certainly, a
consummated contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no contract
is consummated, and if one is consummated, it may be too late for the public to
expose its defects.
Requiring
a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes
fait accompli. This negates the State policy of full transparency on
matters of public concern, a situation which the framers of the Constitution
could not have intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can
allow neither an emasculation of a constitutional right, nor a retreat by the
State of its avowed “policy of full disclosure of all its transactions
involving public interest.”[122][122]
(Emphasis and italics in the original)
Intended
as a “splendid symmetry”[123][123]
to the right to information under the Bill of Rights is the policy of public disclosure under Section 28, Article II of the Constitution
reading:
Sec.
28. 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.[124][124]
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.[125][125]
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.[126][126]
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.[127][127]
Whether
Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR.
SUAREZ. And since this is not self-executory, this policy will not be
enunciated or will not be in force and effect until after Congress shall have
provided it.
MR.
OPLE. I expect it to influence the climate of public ethics immediately but, of
course, the implementing law will have to be enacted by Congress, Mr. Presiding
Officer.[128][128]
The
following discourse, after Commissioner Hilario Davide, Jr., sought
clarification on the issue, is enlightening.
MR.
DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer,
did I get the Gentleman correctly as having said that this is not a
self-executing provision? It would require a legislation by Congress to
implement?
MR. OPLE. Yes. Originally, it was
going to be self-executing, but I accepted an amendment from Commissioner
Regalado, so that the safeguards on national interest are modified by the
clause “as may be provided by law”
MR.
DAVIDE. But as worded, does it not mean that this will immediately take
effect and Congress may provide for reasonable safeguards on the sole
ground national interest?
MR.
OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of
course, Congress here may no longer pass a law revoking it, or if this is
approved, revoking this principle, which is inconsistent with this policy.[129][129]
(Emphasis supplied)
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[130][130]
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
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.[131][131]
Envisioned to be corollary to the twin rights to information and disclosure
is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly,
Mr. Presiding Officer, will the people be able to participate? Will the
government provide feedback mechanisms so that the people can participate and
can react where the existing media facilities are not able to provide full
feedback mechanisms to the government? I suppose this will be part of the government
implementing operational mechanisms.
MR. OPLE. Yes. I think through their
elected representatives and that is how these courses take place. There is a
message and a feedback, both ways.
x x x x
MS. ROSARIO BRAID. Mr. Presiding
Officer, may I just make one last sentence?
I think when we talk about the
feedback network, we are not talking about public officials but also network of
private business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be another OMA
in the making.[132][132]
(Emphasis supplied)
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.[133][133]
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 people’s 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.”[134][134]
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 people’s
participation in the peace process.”[135][135]
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.”[136][136]
Further,
E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to “[c]onduct 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.”[137][137]
E.O. No. 3 mandates the establishment of the NPF to be “the principal forum for
the 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.”[138][138]
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.
PAPP Esperon
committed grave abuse of discretion
The
PAPP committed grave abuse of
discretion when he failed to
carry out the pertinent consultation. 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 thereof.
The
Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the
law and discharge the functions within
the authority granted by the President.[139][139]
Petitioners
are not claiming a seat at the negotiating table, contrary to respondents’
retort in justifying the denial of petitioners’ right to be consulted.
Respondents’ stance manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people’s participation. Such disregard of the
express mandate of the President is not much different from superficial conduct
toward token provisos that border on classic lip service.[140][140]
It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
As
for respondents’ invocation of the doctrine of executive privilege, it is not
tenable under the premises. The argument defies sound reason when contrasted
with E.O. No. 3’s explicit provisions on continuing consultation and dialogue
on both national and local levels. The
executive order even recognizes the exercise of the public’s right even
before the GRP makes its official recommendations or before the government
proffers its definite propositions.[141][141]
It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information,
comments and recommendations from the people through dialogue.
AT
ALL EVENTS, respondents effectively waived the defense of executive privilege
in view of their unqualified disclosure of the official copies of the final
draft of the MOA-AD. By unconditionally complying with the Court’s August 4,
2008 Resolution, without a prayer for the document’s disclosure in camera,
or without a manifestation that it was complying therewith ex abundante ad
cautelam.
Petitioners’
assertion that the Local Government Code (LGC) of 1991 declares it a State
policy to “require all national agencies and offices to conduct periodic
consultations with appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions”[142][142]
is well-taken. The LGC chapter on intergovernmental relations puts flesh into
this avowed policy:
Prior
Consultations Required. – No
project or program shall be implemented by government authorities unless
the consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented shall not be
evicted unless appropriate relocation sites have been provided, in accordance
with the provisions of the Constitution.[143][143]
(Italics and underscoring supplied)
In
Lina, Jr. v. Hon. Paño,[144][144]
the Court held that the above-stated policy and above-quoted provision of the
LGU apply only to national programs or projects which are to be implemented in
a particular local community. Among the programs and projects covered are those
that are critical to the environment and human ecology including those that may
call for the eviction of a particular group of people residing in the
locality where these will be implemented.[145][145]
The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,[146][146] 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 indigenous cultural communities/indigenous peoples (ICCs/IPs),
whose interests are represented herein by petitioner Lopez and are adversely
affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to
participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies.[147][147]
The MOA-AD, an instrument recognizing ancestral domain, failed to justify
its non-compliance with the clear-cut mechanisms ordained in said Act,[148][148]
which entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs.
Notably,
the IPRA does not grant the
Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.
The recognition of the ancestral domain is the raison d’etre of the
MOA-AD, without which all other stipulations or “consensus points” necessarily
must fail. In proceeding to make a sweeping declaration on ancestral domain,
without complying with the IPRA, which is cited as one of the TOR of the
MOA-AD, respondents clearly transcended
the boundaries of their authority. As it seems, even the heart of the
MOA-AD is still subject to necessary changes to the legal framework. While
paragraph 7 on Governance suspends the effectivity of all provisions requiring
changes to the legal framework, such clause is itself invalid, as will be
discussed in the following section.
Indeed,
ours is an open society, with all the acts of the government subject to public scrutiny
and available always to public cognizance. This has to be so if the country is
to remain democratic, with sovereignty residing in the people and all
government authority emanating from them.[149][149]
ON THE SECOND SUBSTANTIVE ISSUE
With
regard to the provisions of the MOA-AD, there can be no question that they
cannot all be accommodated under the present Constitution and laws. Respondents
have admitted as much in the oral arguments before this Court, and the MOA-AD
itself recognizes the need to amend the existing legal framework to render
effective at least some of its provisions. Respondents, nonetheless, counter
that the MOA-AD is free of any legal infirmity because any provisions therein
which are inconsistent with the present legal framework will not be effective
until the necessary changes to that framework are made. The validity of this
argument will be considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as
presently worded.
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. (Emphasis and
underscoring supplied)
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.
Keitner
and Reisman state that
[a]n association is formed when two states of
unequal power voluntarily 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.
x x x[150][150]
(Emphasis and underscoring supplied)
For purposes of illustration, the
Republic of the Marshall Islands and the Federated States of Micronesia (FSM),
formerly part of the U.S.-administered Trust Territory of the Pacific Islands,[151][151]
are associated states of the U.S. pursuant to a Compact of Free Association.
The currency in these countries is the U.S. dollar, indicating their very close
ties with the U.S., yet they issue their own travel documents, which is a mark
of their statehood. Their international legal status as states was confirmed by
the UN Security Council and by their admission to UN membership.
According
to their compacts of free association, the Marshall Islands and the FSM generally
have the capacity to conduct foreign affairs in their own name and right, such
capacity extending to matters such as the law of the sea, marine resources,
trade, banking, postal, civil aviation, and cultural relations. The U.S.
government, when conducting its foreign affairs, is obligated to consult with
the governments of the Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either government.
In
the event of attacks or threats against the Marshall Islands or the FSM, the
U.S. government has the authority and obligation to defend them as if they were
part of U.S. territory. The U.S. government, moreover, has the option of
establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country
from having access to these territories for military purposes.
It
bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between sovereigns.
The Compact of Free Association is a treaty which is subordinate to the
associated nation’s national constitution, and each party may terminate the
association consistent with the right of independence. It has been said that,
with the admission of the U.S.-associated states to the UN in 1990, the UN
recognized that the American model of free association is actually based on an
underlying status of independence.[152][152]
In
international practice, the “associated state”
arrangement has usually been used as a transitional
device of former colonies on their way to full independence.
Examples of states that have passed through the status of associated states as
a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St.
Lucia, St. Vincent and Grenada. All have since become independent states.[153][153]
Back
to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association,
specifically the following: 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 Central
Government over external defense. Moreover, the BJE’s 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 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-AD’s 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.
The BJE is a far
more powerful
entity than the
autonomous region
recognized in the
Constitution
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,[154][154]
namely, a permanent population, a defined territory, a government,
and a capacity to enter into relations with other states.
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 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 MOA-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.” (Emphasis supplied)
As
reflected above, 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.
The MOA-AD,
moreover, would not
comply with
Article X, Section 20 of
the Constitution
since that
provision defines the powers of autonomous regions as follows:
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;
(3) Ancestral
domain and natural resources;
(4) Personal,
family, and property relations;
(5) Regional
urban and rural planning development;
(6) Economic,
social, and tourism development;
(7) Educational
policies;
(8) Preservation
and development of the cultural heritage; and
(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)
Again
on the premise that the BJE may be regarded as an autonomous region, the MOA-AD
would require an amendment that would expand the above-quoted provision. The
mere passage of new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that might vest
in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass
legislation vesting the BJE with treaty-making power in order to accommodate
paragraph 4 of the strand on RESOURCES which states: “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.”
Under our constitutional system, it is only the President who has that power. Pimentel
v. Executive Secretary[155][155]
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
of foreign policy, the President acts as the country's mouthpiece with respect
to international affairs. Hence, the President is vested with the authority
to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)
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.” (Underscoring supplied) 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.
Besides being irreconcilable with the Constitution, the
MOA-AD is also inconsistent with
prevailing statutory law, among which are R.A. No. 9054[156][156]
or the Organic Act of the ARMM, and the IPRA.[157][157]
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-AD. Paragraph 1 on Concepts
and Principles states:
1. It is the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be
accepted as “Bangsamoros”. The Bangsamoro people refers to those who are natives
or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization of its
descendants whether mixed or of full blood. Spouses and their descendants are
classified as Bangsamoro. The freedom of choice of the Indigenous people shall
be respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro
sharply contrasts with that found in the Article X, Section 3 of the Organic
Act, which, rather than lumping together the identities of the Bangsamoro
and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as
follows:
“As used in this Organic Act, the phrase “indigenous
cultural community” refers to Filipino citizens residing in the autonomous
region who are:
(a) Tribal peoples. These are citizens whose social,
cultural and economic conditions distinguish them from other sectors of the
national community; and
(b) Bangsa Moro people. These are citizens who are believers
in Islam and who have retained some or all of their own social,
economic, cultural, and political institutions.”
Respecting
the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-AD’s manner of delineating the
ancestral domain of the Bangsamoro people is a clear departure from that
procedure. By paragraph 1 of Territory,
the Parties simply agree that, subject to the delimitations in the agreed
Schedules, “[t]he Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial domains, and
the aerial domain, the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region.”
Chapter
VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:
SECTION
52. Delineation Process. — The
identification and delineation of ancestral domains shall be done in accordance
with the following procedures:
x x x x
b) Petition
for Delineation. — The process of delineating a specific perimeter may be
initiated by the NCIP with the consent of the ICC/IP concerned, or through a
Petition for Delineation filed with the NCIP, by a majority of the members of
the ICCs/IPs;
c) Delineation
Proper. — The official delineation of ancestral domain boundaries
including census of all community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon filing of the application by
the ICCs/IPs concerned. Delineation will be done in coordination with the
community concerned and shall at all times include genuine involvement and
participation by the members of the communities concerned;
d) Proof
Required. — Proof of Ancestral Domain Claims shall include the testimony
of elders or community under oath, and other documents directly or indirectly
attesting to the possession or occupation of the area since time immemorial by
such ICCs/IPs in the concept of owners which shall be any one (1) of the
following authentic documents:
1) Written
accounts of the ICCs/IPs customs and traditions;
2) Written
accounts of the ICCs/IPs political structure and institution;
3) Pictures
showing long term occupation such as those of old improvements, burial grounds,
sacred places and old villages;
4) Historical
accounts, including pacts and agreements concerning boundaries entered into by
the ICCs/IPs concerned with other ICCs/IPs;
5) Survey
plans and sketch maps;
6) Anthropological
data;
7) Genealogical
surveys;
8) Pictures
and descriptive histories of traditional communal forests and hunting grounds;
9) Pictures
and descriptive histories of traditional landmarks such as mountains, rivers,
creeks, ridges, hills, terraces and the like; and
10) Write-ups of names
and places derived from the native dialect of the community.
e) Preparation
of Maps. — On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare a
perimeter map, complete with technical descriptions, and a description of the
natural features and landmarks embraced therein;
f) Report
of Investigation and Other Documents. — A complete copy of the
preliminary census and a report of investigation, shall be prepared by the
Ancestral Domains Office of the NCIP;
g) Notice
and Publication. — A copy of each document, including a translation in
the native language of the ICCs/IPs concerned shall be posted in a prominent
place therein for at least fifteen (15) days. A copy of the document shall also
be posted at the local, provincial and regional offices of the NCIP, and shall
be published in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition thereto within
fifteen (15) days from date of such publication: Provided, That in areas where
no such newspaper exists, broadcasting in a radio station will be a valid
substitute: Provided, further, That mere posting shall be deemed sufficient if
both newspaper and radio station are not available;
h) Endorsement
to NCIP. — Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the
NCIP endorsing a favorable action upon a claim that is deemed to have
sufficient proof. However, if the proof is deemed insufficient, the Ancestral
Domains Office shall require the submission of additional evidence: Provided,
That the Ancestral Domains Office shall reject any claim that is deemed
patently false or fraudulent after inspection and verification: Provided,
further, That in case of rejection, the Ancestral Domains Office shall give the
applicant due notice, copy furnished all concerned, containing the grounds for
denial. The denial shall be appealable to the NCIP: Provided, furthermore, That
in cases where there are conflicting claims among ICCs/IPs on the boundaries of
ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its full adjudication
according to the section below.
x x x x
To
remove all doubts about the irreconcilability of the MOA-AD with the present
legal system, a discussion of not only the Constitution and domestic statutes,
but also of international law is in order, for
Article II,
Section 2 of the Constitution states that the Philippines “adopts the generally
accepted principles of international law as part of the law of the land.”
Applying
this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,[158][158]
held that the Universal Declaration of Human Rights is part of the law of the
land on account of which it ordered the release on bail of a detained alien of
Russian descent whose deportation order had not been executed even after two
years. Similarly, the Court in Agustin v. Edu[159][159]
applied the aforesaid constitutional provision to the 1968 Vienna Convention on
Road Signs and Signals.
International
law has long recognized the right to self-determination of “peoples,”
understood not merely as the entire population of a State but also a portion
thereof. In considering the question of whether the people of Quebec had a
right to unilaterally secede from Canada, the Canadian Supreme Court in
REFERENCE RE SECESSION OF QUEBEC[160][160]
had occasion to acknowledge that “the right of a people to self-determination
is now so widely recognized in international conventions that the principle has
acquired a status beyond ‘convention’ and is considered a general principle of
international law.”
Among
the conventions referred to are the International Covenant on Civil and
Political Rights[161][161]
and the International Covenant on Economic, Social and Cultural Rights[162][162]
which state, in Article 1 of both covenants, that all peoples, by virtue of the
right of self-determination, “freely determine their political status and
freely pursue their economic, social, and cultural development.”
The
people’s right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made
between the right of internal and external self-determination. REFERENCE RE
SECESSION OF QUEBEC is again instructive:
“(ii) Scope of the Right to Self-determination
126.
The recognized sources of international law establish that the right to
self-determination of a people is normally fulfilled through internal
self-determination – a people’s pursuit of its political,
economic, social and cultural development within the framework of an existing
state. A right to external self-determination (which in this case
potentially takes the form of the assertion of a right to unilateral secession)
arises in only the most extreme of cases and, even then, under carefully
defined circumstances. x x x
External
self-determination can be defined as in the following statement from the Declaration
on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the
free association or integration with an independent State or the emergence into
any other political status freely determined by a people constitute modes of implementing the right of
self-determination by that people. (Emphasis added)
127.
The international law principle of self-determination has evolved within
a framework of respect for the territorial integrity of existing states.
The various international documents that support the existence of a people’s
right to self-determination also contain parallel statements supportive of the
conclusion that the exercise of such a right must be sufficiently limited to
prevent threats to an existing state’s territorial integrity or the stability
of relations between sovereign states.
x x x x (Emphasis, italics and
underscoring supplied)
The
Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise,
namely, where a people is under colonial rule, is subject to foreign domination
or exploitation outside a colonial context, and – less definitely but
asserted by a number of commentators – is blocked from the meaningful
exercise of its right to internal self-determination.
The Court ultimately held that the population of Quebec had no right to
secession, as the same is not under colonial rule or foreign domination, nor is
it being deprived of the freedom to make political choices and pursue economic,
social and cultural development, citing that Quebec is equitably represented in
legislative, executive and judicial institutions within Canada, even occupying
prominent positions therein.
The
exceptional nature of the right of secession is further exemplified in the
REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
AALAND ISLANDS QUESTION.[163][163]
There, Sweden presented to the Council of the League of Nations the question of
whether the inhabitants of the Aaland Islands should be authorized to determine
by plebiscite if the archipelago should remain under Finnish sovereignty or be
incorporated in the kingdom of Sweden. The Council, before resolving the question,
appointed an International Committee composed of three jurists to submit an
opinion on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland.
The Committee stated the rule as follows:
x
x x [I]n the absence of express provisions in international treaties, the
right of disposing of national territory is essentially an attribute of the
sovereignty of every State. Positive International Law does not recognize
the right of national groups, as such, to separate themselves from the State of
which they form part by the simple expression of a wish, any more than it
recognizes the right of other States to claim such a separation. Generally
speaking, the grant or refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning such
a question, under normal conditions therefore, bears upon a question which
International Law leaves entirely to the domestic jurisdiction of one of the
States concerned. Any other solution would amount to an infringement of
sovereign rights of a State and would involve the risk of creating difficulties
and a lack of stability which would not only be contrary to the very idea
embodied in term “State,” but would also endanger the interests of the
international community. If this right is not possessed by a large or small
section of a nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis and underscoring
supplied)
The
Committee held that the dispute concerning the Aaland Islands did not refer to
a question which is left by international law to the domestic jurisdiction of
Finland, thereby applying the exception rather than the rule elucidated above.
Its ground for departing from the general rule, however, was a very narrow one,
namely, the Aaland Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal situation of Finland
was, according to the Committee, so abnormal that, for a considerable time, the
conditions required for the formation of a sovereign State did not exist. In
the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish
national government was disputed by a large section of the people, and it had,
in fact, been chased from the capital and forcibly prevented from carrying out
its duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the relevant
time period, a “definitively constituted” sovereign state. The Committee, therefore,
found that Finland did not possess the right to withhold from a portion of its
population the option to separate itself – a right which sovereign
nations generally have with respect to their own populations.
Turning
now to the more specific category of indigenous peoples, this term has
been used, in scholarship as well as international, regional, and state
practices, to refer to groups with distinct cultures, histories, and
connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded as
“indigenous” since they are the living descendants of pre-invasion inhabitants
of lands now dominated by others. Otherwise stated, indigenous peoples,
nations, or communities are culturally distinctive groups that find themselves
engulfed by settler societies born of the forces of empire and conquest.[164][164]
Examples of groups who have been regarded as indigenous peoples are the Maori
of New Zealand and the aboriginal peoples of Canada.
As
with the broader category of “peoples,” indigenous peoples situated within
states do not have a general right to independence or secession from those
states under international law,[165][165]
but they do have rights amounting to what was discussed above as the right to internal
self-determination.
In
a historic development last September 13, 2007, the UN General Assembly adopted
the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP)
through General Assembly Resolution 61/295. The vote was 143 to 4, the
Philippines being included among those in favor, and the four voting against
being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing
the right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination.
By virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to
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.
Article 5
Indigenous peoples have the right to maintain and strengthen
their distinct political, legal, economic, social and cultural institutions,
while retaining their right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.
Self-government,
as used in international legal discourse pertaining to indigenous peoples, has
been understood as equivalent to “internal self-determination.”[166][166]
The extent of self-determination provided for in the UN DRIP is more
particularly defined in its subsequent articles, some of which are quoted
hereunder:
Article 8
1. Indigenous
peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.
2. States
shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of
depriving them of their integrity as distinct peoples, or of their cultural
values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has
the aim or effect of violating or undermining any of their rights;
(d) Any
form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or
incite racial or ethnic discrimination directed against them.
Article 21
1. Indigenous
peoples have the right, without discrimination, to the improvement of their economic
and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and
social security.
2. States
shall take effective measures and, where appropriate, special measures to
ensure continuing improvement of their economic and social conditions.
Particular attention shall be paid to the rights and special needs of
indigenous elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous
peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.
2. Indigenous
peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they have otherwise
acquired.
3. States
shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military
activities shall not take place in the lands or territories of indigenous
peoples, unless justified by a relevant public interest or otherwise freely
agreed with or requested by the indigenous peoples concerned.
2. States
shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative
institutions, prior to using their lands or territories for military
activities.
Article 32
1. Indigenous
peoples have the right to determine and develop priorities and strategies for
the development or use of their lands or territories and other resources.
2. States
shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and
informed consent prior to the approval of any project affecting their lands or
territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources.
3. States
shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous
peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States
or their successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.
2. Nothing
in this Declaration may be interpreted as diminishing or eliminating the rights
of indigenous peoples contained in treaties, agreements and other constructive
arrangements.
Article 38
States in consultation and cooperation with indigenous
peoples, shall take the appropriate measures, including legislative measures,
to achieve the ends of this Declaration.
Assuming
that the UN DRIP, like the Universal Declaration on Human Rights, must now be
regarded as embodying customary international law – a question which the
Court need not definitively resolve here – the obligations enumerated
therein do not strictly require the Republic to grant the Bangsamoro people,
through the instrumentality of the BJE, the particular rights and powers
provided for in the MOA-AD. Even the more specific provisions of the UN DRIP
are general in scope, allowing for flexibility in its application by the
different States.
There
is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed,
Article 8 presupposes that it is the State which will provide protection for
indigenous peoples against acts like the forced dispossession of their lands
– a function that is normally performed by police officers. If the
protection of a right so essential to indigenous people’s identity is
acknowledged to be the responsibility of the State, then surely the protection
of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric space. What it upholds,
in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied
or otherwise used or acquired.
Moreover,
the UN DRIP, while upholding the right of indigenous peoples to autonomy, does
not obligate States to grant indigenous peoples the near-independent status of
an associated state. All the rights recognized in that document are qualified
in Article 46 as follows:
1. Nothing
in this Declaration may be interpreted as implying for any State, people,
group or person any right to engage in any activity or to perform any act
contrary to the Charter of the United Nations or construed as authorizing or
encouraging any action which would dismember or impair, totally
or in part, the territorial integrity or political unity of sovereign and
independent States.
Even
if the UN DRIP were considered as part of the law of the land pursuant to
Article II, Section 2 of the Constitution, it would not suffice to uphold the
validity of the MOA-AD so as to render its compliance with other laws
unnecessary.
It
is, therefore, clear that the MOA-AD contains numerous provisions that cannot
be reconciled with the Constitution and the laws as presently worded. Respondents proffer, however, that
the signing of the MOA-AD alone would not have entailed any violation of law or
grave abuse of discretion on their part, precisely because it stipulates that
the provisions thereof inconsistent with the laws shall not take effect until
these laws are amended. They cite paragraph 7 of the MOA-AD strand on
GOVERNANCE quoted earlier, but which is reproduced below for convenience:
7. The 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 signing of a Comprehensive
Compact and 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.
Indeed,
the foregoing stipulation keeps many controversial provisions of the MOA-AD
from coming into force until the necessary changes to the legal framework are
effected. While the word “Constitution”
is not mentioned in the provision now under consideration or anywhere else in
the MOA-AD, the term “legal framework” is certainly broad enough to include the
Constitution.
Notwithstanding
the suspensive clause, however, respondents, by their mere act of incorporating
in the MOA-AD the provisions thereof regarding the associative relationship
between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states
that the “negotiations shall be conducted in accordance with x x x the
principles of the sovereignty and territorial
integrity of the Republic of the Philippines.” (Emphasis supplied)
Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for
independence, or worse, an implicit acknowledgment of an independent status
already prevailing.
Even
apart from the above-mentioned Memorandum, however, the MOA-AD is defective
because the suspensive clause is invalid, as discussed below.
The
authority of the GRP Peace Negotiating Panel to negotiate with the MILF is
founded on E.O. No. 3, Section 5(c), which states that there shall be
established Government Peace Negotiating Panels for negotiations with different
rebel groups to be “appointed by the President as her official emissaries to
conduct negotiations, dialogues, and face-to-face discussions with rebel
groups.” These negotiating panels are to report to the President, through the
PAPP on the conduct and progress of the negotiations.
It
bears noting that the GRP Peace Panel, in exploring lasting solutions to the
Moro Problem through its negotiations with the MILF, was not restricted by E.O.
No. 3 only to those options available under the laws as they presently stand.
One of the components of a comprehensive peace process, which E.O. No. 3
collectively refers to as the “Paths to Peace,” is the pursuit of social,
economic, and political reforms which may require new legislation or even
constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section
3(a), of E.O. No. 125,[167][167]
states:
SECTION 4. The Six Paths to Peace. – The components of
the comprehensive peace process comprise the processes known as the “Paths to
Peace”. These component processes are interrelated and not mutually exclusive,
and must therefore be pursued simultaneously in a coordinated and integrated
fashion. They shall include, but may not be limited to, the following:
a. PURSUIT
OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed
at addressing the root causes of internal armed conflicts and social unrest.
This may require administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The
MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to
address, pursuant to this provision of E.O. No. 3, the root causes of the armed
conflict in Mindanao. The E.O. authorized them to “think outside the box,” so
to speak. Hence, they negotiated and were set on signing the MOA-AD that
included various social, economic, and political reforms which cannot, however,
all be accommodated within the present legal framework, and which thus would
require new legislation and constitutional amendments.
The
inquiry on the legality of the “suspensive clause,” however, cannot stop here,
because it must be asked
whether the
President herself may exercise the power delegated to the GRP Peace Panel under
E.O. No. 3, Sec. 4(a).
The
President cannot delegate a power that she herself does not possess. May the
President, in the course of peace negotiations, agree to pursue reforms that
would require new legislation and constitutional amendments, or should the
reforms be restricted only to those solutions which the present laws allow? The
answer to this question requires a discussion of
the extent of the
President’s power to conduct peace negotiations.
That the authority of the President to
conduct peace negotiations with rebel groups is not explicitly mentioned in the
Constitution does not mean that she has no such authority. In Sanlakas v.
Executive Secretary,[168][168]
in issue was the authority of the President to declare a state of rebellion
– an authority which is not expressly provided for in the Constitution.
The Court held thus:
“In
her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's
power to forbid the return of her exiled predecessor. The rationale for the
majority's ruling rested on the President's
.
. . unstated residual powers which are implied from the grant of
executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited
to what are expressly enumerated in the article on the Executive Department and
in scattered provisions of the Constitution. This is so, notwithstanding
the avowed intent of the members of the Constitutional Commission of 1986 to
limit the powers of the President as a reaction to the abuses under the regime
of Mr. Marcos, for the result was a limitation of specific powers of the
President, particularly those relating to the commander-in-chief clause, but
not a diminution of the general grant of executive power.
Thus,
the President's authority to declare a state of rebellion springs in the
main from her powers as chief executive and, at the same time, draws strength
from her Commander-in-Chief powers. x x x (Emphasis and underscoring
supplied)
Similarly,
the President’s power to conduct peace negotiations is implicitly included
in her powers as Chief Executive and Commander-in-Chief. As Chief
Executive, the President has the general responsibility to promote public
peace, and as Commander-in-Chief, she has the more specific duty to prevent and
suppress rebellion and lawless violence.[169][169]
As
the experience of nations which have similarly gone through internal armed
conflict will show, however, peace is rarely attained by simply pursuing a
military solution. Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nation’s constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a
successful political and governance transition must form the core of any
post-conflict peace-building mission. As we have observed in Liberia and Haiti
over the last ten years, conflict cessation without modification of the
political environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50 percent of
states emerging from conflict return to conflict. Moreover,
a substantial proportion of transitions have resulted in weak or limited
democracies.
The design of a constitution and its
constitution-making process can play an important role in the political and
governance transition. Constitution-making after conflict
is an opportunity to create a common vision of the future of a state and a road
map on how to get there. The constitution can be partly a peace agreement and
partly a framework setting up the rules by which the new democracy will
operate.[170][170]
In
the same vein, Professor Christine Bell, in her article on the nature and legal
status of peace agreements, observed that the typical way that peace agreements
establish or confirm mechanisms for demilitarization and demobilization is by
linking them to new constitutional structures addressing governance,
elections, and legal and human rights institutions.[171][171]
In
the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous regions[172][172]
is the framers’ intention to implement a particular peace agreement, namely,
the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman
Nur Misuari.
MR.
ROMULO. There are other speakers; so, although I have some more questions, I
will reserve my right to ask them if they are not covered by the other
speakers. I have only two questions.
I
heard one of the Commissioners say that local autonomy already exists in the
Muslim region; it is working very well; it has,
in fact, diminished a great deal of the problems. So, my question is: since
that already exists, why do we have to go into something new?
MR.
OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement
the provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is
merely a partial response to the Tripoli Agreement itself and to the fuller
standard of regional autonomy contemplated in that agreement, and now by state
policy.[173][173] (Emphasis supplied)
The
constitutional provisions on autonomy and the statutes enacted pursuant to them
have, to the credit of their drafters, been partly successful. Nonetheless, the
Filipino people are still faced with the reality of an on-going conflict
between the Government and the MILF. If the President is to be expected to find
means for bringing this conflict to an end and to achieve lasting peace in
Mindanao, then she must be given the leeway to explore, in the course of peace
negotiations, solutions that may require changes to the Constitution for their
implementation. Being uniquely vested with the power to conduct peace
negotiations with rebel groups, the President is in a singular position to know
the precise nature of their grievances which, if resolved, may bring an end to
hostilities.
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. In
particular, Congress would have the option, pursuant to Article XVII, Sections
1 and 3 of the Constitution, to propose the recommended amendments or revision
to the people, call a constitutional convention, or submit to the electorate
the question of calling such a convention.
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.
In
Sanidad v. COMELEC,[174][174]
in issue was the legality of then President Marcos’ act of directly submitting
proposals for constitutional amendments to a referendum, bypassing the interim
National Assembly which was the body vested by the 1973 Constitution with the
power to propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the President’s
act, holding that “the urges of absolute necessity” compelled the President as
the agent of the people to act as he did, there being no interim National
Assembly to propose constitutional amendments. Against this ruling, Justices
Teehankee and Muñoz Palma vigorously dissented. The Court’s concern at present,
however, is not with regard to the point on which it was then divided in that
controversial case, but on that which was not disputed by either side.
Justice
Teehankee’s dissent,[175][175]
in particular, bears noting. While he disagreed that the President may directly
submit proposed constitutional amendments to a referendum, implicit in his
opinion is a recognition that he would have upheld the President’s action along
with the majority had the President convened the interim National Assembly
and coursed his proposals through it. Thus Justice Teehankee opined:
“Since
the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner
of the exercise of such powers, and the constituent power has not been granted
to but has been withheld from the President or Prime Minister, it follows that
the President’s questioned decrees proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim
National Assembly in whom the power is expressly vested) are devoid of
constitutional and legal basis.”[176][176]
(Emphasis supplied)
From
the foregoing discussion, 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.
Since,
under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also
submit her recommendations to the people, not as a formal proposal to be voted
on in a plebiscite similar to what President Marcos did in Sanidad, but
for their independent consideration of whether these recommendations merit
being formally proposed through initiative.
These
recommendations, however, may amount to nothing more than the President’s
suggestions to the people, for any further involvement in the process of
initiative by the Chief Executive may vitiate its character as a genuine “people’s
initiative.” The only initiative recognized by the Constitution is that which
truly proceeds from the people. As the Court stated in Lambino v. COMELEC:[177][177]
“The Lambino Group claims that their
initiative is the ‘people's voice.’ However, the Lambino Group unabashedly
states in ULAP Resolution No. 2006-02, in the verification of their petition
with the COMELEC, that ‘ULAP maintains its unqualified support to the agenda of
Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.’
The Lambino Group thus admits that their ‘people's’ initiative is an ‘unqualified
support to the agenda’ of the incumbent President to change the
Constitution. This forewarns the Court to be wary of incantations of ‘people's
voice’ or ‘sovereign will’ in the present initiative.”
It
will be observed that the President has authority, as stated in her oath of
office,[178][178]
only to preserve and defend the Constitution. Such presidential power
does not, however, extend to allowing her to change the Constitution, but
simply to recommend proposed amendments or revision. As long as she limits
herself to recommending these changes and submits to the proper procedure for
constitutional amendments and revision, her mere recommendation need not be
construed as an unconstitutional act.
The
foregoing discussion focused on the President’s authority to propose constitutional
amendments, since her authority to propose new legislation is not in
controversy. It has been an accepted practice for Presidents in this
jurisdiction to propose new legislation. One of the more prominent instances
the practice is usually done is in the yearly State of the Nation Address of
the President to Congress. Moreover, the annual general appropriations bill has
always been based on the budget prepared by the President, which – for
all intents and purposes – is a proposal for new legislation coming from
the President.[179][179]
The “suspensive
clause” in the MOA-AD viewed in light of the above-discussed standards
Given
the limited nature of the President’s authority to propose constitutional
amendments, she cannot guarantee
to any third party that the required amendments will eventually be put in
place, nor even be submitted to a plebiscite. The most she could do is
submit these proposals as recommendations either to Congress or the people, in
whom constituent powers are vested.
Paragraph
7 on Governance of the MOA-AD states, however, that all provisions thereof
which cannot be reconciled with the present Constitution and laws “shall come
into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework.” This stipulation does not bear the
marks 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.
That there is no uncertainty being contemplated is plain from what follows, for
the paragraph goes on to state that the contemplated changes shall be “with
due regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact.”
Pursuant
to this stipulation, therefore, it is mandatory for the GRP to effect
the changes to the legal framework contemplated in the MOA-AD – which
changes would include constitutional amendments, as discussed earlier. It bears
noting that,
By the time these
changes are put in place, the MOA-AD itself would be counted among the “prior
agreements” from which there could be no derogation.
What
remains for discussion in the Comprehensive Compact would merely be the
implementing details for these “consensus points” and, notably, the deadline
for effecting the contemplated changes to the legal framework.
Plainly,
stipulation-paragraph 7 on GOVERNANCE 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.
A
comparison between the “suspensive clause” of the MOA-AD with a similar
provision appearing in the 1996 final peace agreement between the MNLF and the
GRP is most instructive.
As
a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase I covered a three-year transitional
period involving the putting up of new administrative structures through
Executive Order, such as the Special Zone of Peace and Development (SZOPAD)
and the Southern Philippines Council for Peace and Development (SPCPD), while Phase
II covered the establishment of the new regional autonomous government through
amendment or repeal of R.A. No. 6734, which was then the Organic Act of the
ARMM.
The
stipulations on Phase II consisted of specific agreements on the structure of
the expanded autonomous region envisioned by the parties. To that extent, they
are similar to the provisions of the MOA-AD. There is, however, a crucial
difference between the two agreements. While the MOA-AD virtually guarantees that the “necessary changes to the legal
framework” will be put in place, the GRP-MNLF final peace agreement
states thus: “Accordingly, these provisions [on Phase II] shall be recommended
by the GRP to Congress for incorporation in the amendatory or repealing law.”
Concerns
have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its
Constitution in conformity thereto, on the ground that it may be considered
either as a binding agreement under international law, or a unilateral
declaration of the Philippine government to the international community that it
would grant to the Bangsamoro people all the concessions therein stated.
Neither ground finds sufficient support in international law, however.
The
MOA-AD, as earlier mentioned in the overview thereof, would have included
foreign dignitaries as signatories. In addition, representatives of other
nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have had the
status of a binding international agreement had it been signed. An examination
of the prevailing principles in international law, however, leads to the
contrary conclusion.
The
Decision on Challenge to Jurisdiction:
Lomé Accord Amnesty[180][180]
(the Lomé Accord case) of the Special Court of Sierra Leone is enlightening.
The Lomé Accord was a peace agreement signed on July 7, 1999 between the
Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel
group with which the Sierra Leone Government had been in armed conflict for
around eight years at the time of signing. There were non-contracting
signatories to the agreement, among which were the Government of the Togolese
Republic, the Economic Community of West African
States, and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another agreement was
entered into by the UN and that Government whereby the Special Court of Sierra
Leone was established. The sole purpose of the Special Court, an international
court, was to try persons who bore the greatest responsibility for serious
violations of international humanitarian law and Sierra Leonean law committed
in the territory of Sierra Leone since November 30, 1996.
Among
the stipulations of the Lomé Accord was a provision for the full pardon of the
members of the RUF with respect to anything done by them in pursuit of their
objectives as members of that organization since the conflict began.
In
the Lomé Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty
provided therein, citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that
the Lome Accord is not a treaty and that it can only create binding
obligations and rights between the parties in municipal law, not in
international law. Hence, the Special Court held, it is ineffective in
depriving an international court like it of jurisdiction.
“37. In regard to the nature of a negotiated settlement of an internal
armed conflict it is easy to assume and to argue with some degree of
plausibility, as Defence counsel for the defendants seem to have done, that the
mere fact that in addition to the parties to the conflict, the document
formalizing the settlement is signed by foreign heads of state or their
representatives and representatives of international organizations, means the
agreement of the parties is internationalized so as to create obligations in
international law.
x x x x
40. Almost
every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose
auspices the settlement took place but who are not at all parties to the
conflict, are not contracting parties and who do not claim any obligation from
the contracting parties or incur any obligation from the settlement.
41. In
this case, the parties to the conflict are the lawful authority of the State
and the RUF which has no status of statehood and is to all intents and purposes
a faction within the state. The non-contracting signatories of the Lomé
Agreement were moral guarantors of the principle that, in the terms of
Article XXXIV of the Agreement, “this peace agreement is implemented with
integrity and in good faith by both parties”. The moral guarantors assumed no
legal obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding of the extent of
the agreement to be implemented as not including certain international crimes.
42. An
international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will
be a breach determined under international law which will also provide
principle means of enforcement. The Lomé Agreement created neither rights
nor obligations capable of being regulated by international law. An
agreement such as the Lomé Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of peace that the
international community acting through the Security Council may take note of. That, however, will not convert it to an
international agreement which creates an obligation enforceable in
international, as distinguished from municipal, law. A breach of
the terms of such a peace agreement resulting in resumption of internal armed
conflict or creating a threat to peace in the determination of the Security
Council may indicate a reversal of the factual situation of peace to be visited
with possible legal consequences arising from the new situation of conflict
created. Such consequences such as action by the Security Council pursuant to
Chapter VII arise from the situation and not from the agreement, nor from the
obligation imposed by it. Such action cannot be regarded as a remedy for the
breach. A peace agreement which settles an internal armed conflict
cannot be ascribed the same status as one which settles an international armed
conflict which, essentially, must be between two or more warring States. The
Lomé Agreement cannot be characterised as an international instrument. x x
x” (Emphasis, italics and underscoring supplied)
Similarly,
that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have
sufficed to vest in it a binding character under international law.
In
another vein, concern has been raised that the MOA-AD would amount to a
unilateral declaration of the Philippine State, binding under international
law, that it would comply with all the stipulations stated therein, with the
result that it would have to amend its Constitution accordingly regardless of
the true will of the people. Cited as authority for this view is Australia
v. France,[181][181]
also known as the Nuclear Tests Case, decided by the International Court
of Justice (ICJ).
In
the Nuclear Tests Case, Australia challenged before the ICJ the legality of
France’s nuclear tests in the South Pacific. France refused to appear in the
case, but public statements from its President, and similar statements from
other French officials including its Minister of Defence, that its 1974 series
of atmospheric tests would be its last, persuaded the ICJ to dismiss the case.[182][182]
Those statements, the ICJ held, amounted to a legal undertaking addressed to
the international community, which required no acceptance from other States for
it to become effective.
Essential
to the ICJ ruling is its finding that the French government intended to be
bound to the international community in issuing its public statements, viz:
43. It
is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often are, very specific. When
it is the intention of the State making the declaration that it should become
bound according to its terms, that intention confers on the declaration the
character of a legal undertaking, the State being thenceforth legally
required to follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be bound,
even though not made within the context of international negotiations, is
binding. In these circumstances, nothing in the nature of a quid pro quo nor
any subsequent acceptance of the declaration, nor even any reply or reaction
from other States, is required for the declaration to take effect, since such a
requirement would be inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the State was made.
44. Of
course, not all unilateral acts imply obligation; but a State may choose to
take up a certain position in relation to a particular matter with the
intention of being bound–the intention is to be ascertained by
interpretation of the act. When States make statements by which their
freedom of action is to be limited, a restrictive interpretation is called for.
x x x x
51. In
announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests. It was bound to assume that
other States might take note of these statements and rely on their being
effective. The validity of these statements and their legal consequences
must be considered within the general framework of the security of
international intercourse, and the confidence and trust which are so
essential in the relations among States. It is from the actual substance
of these statements, and from the circumstances attending their making, that
the legal implications of the unilateral act must be deduced. The
objects of these statements are clear and they were addressed to the
international community as a whole, and the Court holds that they
constitute an undertaking possessing legal effect. The Court considers *270 that the President of the
Republic, in deciding upon the effective cessation of atmospheric tests, gave
an undertaking to the international community to which his words were
addressed. x x x (Emphasis and underscoring supplied)
As
gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the
following conditions are present: the statements were clearly addressed to
the international community, the state intended to be bound to that community
by its statements, and that not to give legal effect to those statements would
be detrimental to the security of international intercourse. Plainly,
unilateral declarations arise only in peculiar circumstances.
The
limited applicability of the Nuclear Tests Case ruling was recognized in a
later case decided by the ICJ entitled Burkina Faso v. Mali,[183][183]
also known as the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement made by the President of Mali,
in an interview by a foreign press agency, that Mali would abide by the
decision to be issued by a commission of the Organization of African Unity on a
frontier dispute then pending between Mali and Burkina Faso.
Unlike
in the Nuclear Tests Case, the ICJ held that the statement of Mali’s President
was not a unilateral act with legal implications. It clarified that its ruling
in the Nuclear Tests case rested on the peculiar circumstances surrounding the
French declaration subject thereof, to wit:
40. In
order to assess the intentions of the author of a unilateral act, account must
be taken of all the factual circumstances in which the act occurred. For
example, in the Nuclear Tests cases, the Court took the view that since the
applicant States were not the only ones concerned at the possible continuance of
atmospheric testing by the French Government, that Government's unilateral
declarations had ‘conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests‘ (I.C.J. Reports 1974, p.
269, para. 51; p. 474, para. 53). In the particular circumstances of those
cases, the French Government could not express an intention to be bound
otherwise than by unilateral declarations. It is difficult to see how it could
have accepted the terms of a negotiated solution with each of the applicants
without thereby jeopardizing its contention that its conduct was lawful. The
circumstances of the present case are radically different. Here, there was
nothing to hinder the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of African Unity
Mediation Commission by the normal method: a formal agreement on the basis of
reciprocity. Since no agreement of this kind was concluded between the
Parties, the Chamber finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11 April 1975 as a unilateral act
with legal implications in regard to the present case. (Emphasis and
underscoring supplied)
Assessing
the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international
community. The Philippine
panel did not draft the same with the clear intention of being bound thereby to
the international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or
another, in the negotiation and projected signing of the MOA-AD, they
participated merely as witnesses or, in the case of Malaysia, as facilitator.
As held in the Lomé Accord case, the mere fact that in addition to the parties
to the conflict, the peace settlement is signed by representatives of states
and international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since
the commitments in the MOA-AD were not addressed to States, not to give legal
effect to such commitments would not be detrimental to the security of
international intercourse – to the trust and confidence essential in the
relations among States.
In
one important respect, the circumstances surrounding the MOA-AD are closer to
that of Burkina Faso wherein, as already discussed, the Mali President’s
statement was not held to be a binding unilateral declaration by the ICJ. As in
that case, there was also nothing to hinder the Philippine panel, had it really
been its intention to be bound to other States, to manifest that intention by
formal agreement. Here, that formal agreement would have come about by the inclusion
in the MOA-AD of a clear commitment to be legally bound to the international
community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an
acceptance of that commitment. Entering into such a formal agreement would not
have resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented the
French Government from entering into a formal agreement with other countries.
That the Philippine panel did not enter into such a formal agreement suggests
that it had no intention to be bound to the international community. On that
ground, the MOA-AD may not be
considered a unilateral declaration under international law.
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 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.
The
sovereign people may, if it so desired, go to the extent of giving up a portion
of its own territory to the Moros for the sake of peace, for it can change the
Constitution in any it wants, so long as the change is not inconsistent with
what, in international law, is known as Jus
Cogens.[184][184]
Respondents, however, may not preempt it in that decision.
SUMMARY
The
petitions are ripe for adjudication. The failure of respondents to consult the
local government units or communities affected constitutes a departure by
respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded
their authority by the mere act of guaranteeing amendments to the Constitution.
Any alleged violation of the Constitution by any branch of government is a
proper matter for judicial review.
As
the petitions involve constitutional issues which are of paramount public interest
or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal
stance adopted in David v.
Macapagal-Arroyo.
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 present petitions provide an exception to the “moot and
academic” principle in view of (a) the grave violation of the Constitution
involved; (b) the exceptional
character of the situation and
paramount public interest; (c) the 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 up that could contain similar or significantly dissimilar 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.
The
people’s right to information on matters of public concern under Sec. 7,
Article III of the Constitution is in splendid
symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Article II of the
Constitution. 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 complete and effective exercise of the
right to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.
The
contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information
contemplates steps and negotiations leading to the consummation of the
contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.
An
essential element of these twin freedoms is to keep a continuing dialogue or
process of communication between the government and the people. Corollary to
these twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.
At
least three pertinent laws animate these 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 for consensus-building.
In fact, it is the duty of the Presidential Adviser on the Peace Process to
conduct 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 ecology including those that may call for
the eviction of a particular group of people residing in such locality, is
implemented therein. 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.
Three,
Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for
clear-cut procedure for the recognition and delineation of ancestral domain,
which entails, among other things, the observance of the free and prior
informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate and recognize
an ancestral domain claim by mere agreement or compromise.
The
invocation of the doctrine of executive privilege as a defense to the general
right to information or the specific right to consultation is untenable. The
various explicit legal provisions fly in the face of executive secrecy. In any
event, respondents 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.
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, and Republic Act No. 8371. 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
thereof. It illustrates a gross evasion of positive duty and a virtual refusal
to perform the duty enjoined.
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 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.
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.
WHEREFORE, respondents’ motion to dismiss is DENIED. The main and intervening
petitions are GIVEN DUE COURSE and hereby GRANTED.
The
Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 is declared contrary
to law and the Constitution.
SO ORDERED.
CONCHITA CARPIO
MORALES
Associate Justice
[1][1] Eric Gutierrez and Abdulwahab Guialal, The Unfinished Jihad: The Moro Islamic Liberation Front and Peace in Mindanao in Rebels, Warlords and Ulama: A Reader on Muslim Separatism and the War in Southern Philippines 275 (1999).
[2][2] Memorandum of Respondents dated September 24, 2008, p. 10.
[3][3] Memorandum of Respondents dated September 24, 2008, pp. 10-11.
[4][4] Vide Salah Jubair, The Long Road to Peace: Inside the GRP-MILF Peace Process 35-36 (2007).
[5][5] Memorandum of Respondents dated September 24, 2008, p. 12.
[6][6] Vide Salah Jubair, The Long Road to Peace: Inside the GRP-MILF Peace Process 40-41 (2007).
[7][7] Composed of its Chairperson, Sec. Rodolfo Garcia, and members, Atty. Leah Armamento, Atty. Sedfrey Candelaria, with Mark Ryan Sullivan as Secretariat head.
[8][8] Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piñol.
[9][9] Rollo (G.R. No. 183591), pp. 3-33.
[10][10] Supplement to Petition (with motion for leave) of August 11, 2008, rollo (G.R. No. 183591), pp. 143-162.
[11][11] Rollo (G.R. No. 183752), pp. 3-28.
[12][12] Represented by Mayor Celso L. Lobregat.
[13][13] Rollo (G.R. No. 183591), pp. 132-135; rollo (G.R. No. 183752), pp. 68-71.
[14][14] Rollo (G.R. No. 183591), pp. 130-131; rollo (G.R. No. 183752), pp. 66-67.
[15][15] Rollo (G.R. No. 183752), pp. 173-246.
[16][16] Represented by Mayor Lawrence Lluch Cruz.
[17][17] Represented by Governor Rolando Yebes.
[18][18] Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico Mejorada II, Edionar Zamoras, Edgar Baguio, Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito Darunday, Angelica Carreon, and Luzviminda Torrino.
[19][19] Rollo (G.R. No. 183951), pp. 3-33.
[20][20] Rollo (G.R. No. 183962), pp. 3- 20.
[21][21] Represented by Mayor Cherrylyn Santos-Akbar.
[22][22] Represented by Gov. Suharto Mangudadatu.
[23][23] Represented by Mayor Noel Deano.
[24][24] Rollo (G.R. No. 183591), pp. 451-453.
[25][25] R.A.
No. 6734, as amended by R.A. 9054 entitled An
Act to Strengthen and Expand the organic act for the Autonomous Region in
Muslim Mindanao, Amending for the
purpose republic act no. 6734, entitled an act of providing for the autonomous
region in muslim mindanao, as amended.
[26][26] R.A. No. 8371, An act to recognize, protect and promote the rights of indigenous cultural communities/indigenous peoples, creating a national commission on indigenous peoples, establishing implementing mechanisms, appropriating funds therefor, and for other purposes, October 29, 1997.
[27][27] Cesar Adib Majul, The General Nature of Islamic Law and its Application in the Philippines, lecture delivered as part of the Ricardo Paras Lectures, a series jointly sponsored by the Commission on Bar Integration of the Supreme Court, the Integrated Bar of the Philippines and the U.P. Law Center, September 24, 1977.
[28][28] Ibid.,
vide M.A. Muqtedar Khan Ph.D., immigrant
American Muslims and the Moral Dilemmas of Citizenship, http://www.islamfortoday.com/khan04.htm, visited on September 18, 2008, and
Syed Shahabuddin, Muslim World and the contemporary
Ijma' on rules of governance - ii, http://www.milligazette.com/Archives/2004/01-15May04-Print-Edition/0105200471.htm, visited on September 18, 2008.
[29][29] MOA-AD Terms of Reference.
[30][30] MOA-AD, Concepts and Principles, par. 1.
[31][31] A traditional Muslim historical account of the acts of Shariff Kabungsuwan is quoted by historian Cesar Adib Majul in his book, Muslims in the Philippines (1973):
After a time it came to pass that Mamalu, who was the chief man next to Kabungsuwan, journeyed to Cotabato. He found there that many of the people had ceased to regard the teachings of the Koran and had fallen into evil ways. Mamamlu sent to Kabungsuwan word of these things.
Kabungsuwan with a portion of his warriors went from Malabang to Cotabato and found that the word sent to him by Mamamlu was true. Then he assembled together all the people. Those of them, who had done evilly and disregarded the teachings of the Koran thenceforth, he drove out of the town into the hills, with their wives and children.
Those wicked one who were thus cast out were the beginnings of the tribes of the Tirurais and Manobos, who live to the east of Cotabato in the country into which their evil forefathers were driven. And even to this day they worship not God; neither do they obey the teachings of the Koran . . . But the people of Kabungsuwan, who regarded the teachings of the Koran and lived in fear of God, prospered and increased, and we Moros of today are their descendants. (Citation omitted, emphasis supplied).
[32][32] Id., par. 2.
[33][33] Id., par. 3.
[34][34] Id., par. 4.
[35][35] Francisco L. Gonzales, Sultans of a Violent Land, in Rebels, Warlords and Ulama: A Reader on Muslim Separatism and the War in Southern Philippines 99, 103 (1999).
[36][36] The Charter of the Assembly of First Nations, the leading advocacy group for the indigenous peoples of Canada, adopted in 1985, begins thus:
“WE THE
CHIEFS OF THE INDIAN FIRST NATIONS IN CANADA HAVING DECLARED:
THAT our peoples are the original peoples of this land having been put here by
the Creator; x x x.”
[37][37] Id., par. 6.
[38][38] MOA-AD, Territory, par. 1.
[39][39] Id., par. 2(c).
[40][40] Id., par. 2(d).
[41][41] Id., par. 2(e).
[42][42] Id., par. 2(f).
[43][43] Id., par, 2(g)(1).
[44][44] Id., par. 2(h).
[45][45] Id., par. 2(i).
[46][46] MOA-AD, Resources, par. 4.
[47][47] Ibid.
[48][48] Id., par. 5.
[49][49] Id., par. 6.
[50][50] Id., par. 7.
[51][51] Id., par. 9.
[52][52] MOA-AD, Governance, par. 3.
[53][53] “IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,] hereby affix their signatures.”
[54][54] Vide 1987 Constitution, Article VIII, Section 1.
[55][55] Vide Muskrat v. US, 219 US 346 (1911).
[56][56] Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).
[57][57] Didipio Earth Savers’ Multi-Purpose Association, Incorporated (DESAMA) v. Gozun, G.R. No. 157882, March 30, 2006, 485 SCRA 286.
[58][58] Vide U.S. v. Muskrat, 219 U.S. 346, 357 (1902).
[59][59] Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998).
[60][60] Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901-902 (2003) (citation omitted).
[61][61] Vide Warth v. Seldin, 422 US 490, 511 (1975).
[62][62] Vide id. at 526.
[63][63] Solicitor General’s Comment to G.R. No. 183752, pp. 9-11.
[64][64] MOA-AD, pp. 3-7, 10.
[65][65] 391 Phil. 43 (2000).
[66][66] Id. at 107-108.
[67][67] 530 US 290 (2000).
[68][68] Id. at 292.
[69][69] 505 U.S. 144 (1992).
[70][70] Id. at 175.
[71][71] Although only one petition is denominated a petition for certiorari, most petitions pray that the MOA-AD be declared unconstitutional/null and void.
[72][72] Vide Rules of Court, Rule 65, Secs. 1 and 2.
[73][73] Vide Rules of Court, Rule 65, Sec. 3.
[74][74] Tañada v. Angara, 338 Phil. 546, 575 (1997).
[75][75] Entitled Defining Policy and Administrative Structure for Government’s Peace Efforts which reaffirms and reiterates Executive Order No. 125 of September 15, 1993.
[76][76] E.O. No. 3, (2001), Sec. 1.
[77][77] Vide Tañada v. Angara, supra note 74.
[78][78] Baker v. Carr, 369 U.S. 186 (1962).
[79][79] Vicente V. Mendoza , Judicial Review of Constitutional Questions
137 (2004).
[80][80] Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003).
[81][81] David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 223.
[82][82] Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995).
[83][83] Macasiano v. NHA, G.R. No. 107921, July 1, 1993, 224 SCRA 236.
[84][84] Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 328-329 (2000) citing Phil. Constitution Ass’n., Inc. v. Mathay, et al., 124 Phil. 890 (1966).
[85][85] Vide NAACP v. Alabama, 357 U.S. 449 (1958).
[86][86] Francisco, Jr. v. The House of Representatives, supra note 80.
[87][87] Province of Batangas v. Romulo, G.R. No.
152774, May 27, 2004, 429 SCRA 736.
[88][88] Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) citing Gibson v. Judge Revilla, 180 Phil. 645 (1979).
[89][89] Supra note 81.
[90][90] Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 (2000).
[91][91] Tatad v. Secretary of Energy, 346 Phil. 321 (1997).
[92][92] Vide
Compliance of September 1,
2008 of respondents.
[93][93] Vide
Manifestation of September
4, 2008 of respondents.
[94][94] Supra note 81.
[95][95] Id. citing Province of Batangas v.
Romulo, supra note 87.
[96][96] Id. citing Lacson v. Perez,
410 Phil. 78 (2001).
[97][97] Id. citing Province of Batangas v. Romulo, supra note 87.
[98][98] Id. citing Albaña v. Comelec,
478 Phil. 941 (2004); Chief Supt. Acop v.
Guingona Jr., 433 Phil. 62 (2002);
SANLAKAS v. Executive Secretary Reyes,
466 Phil. 482 (2004).
[99][99] US v. W.T. Grant Co., 345 U.S. 629
(1953); US v. Trans-Missouri Freight Assn,
166 U.S. 290, 308-310 (1897); Walling v.
Helmerich & Payne, Inc., 323 U.S. 37, 43 (1944); Gray v. Sanders, 372 U.S. 368, 376 (1963); Defunis v. Odegaard, 416 U.S. 312 (1974).
[100][100] Supra note 87.
[101][101] G.R. No. 178920, October 15, 2007, 536 SCRA 290.
[102][102] Chavez v. PCGG, 366 Phil. 863, 871 (1999).
[103][103] G.R. No. 178830, July 14, 2008.
[104][104] Supra note 98.
[105][105] Ortega v. Quezon City Government, G.R. No. 161400, September 2, 2005, 469 SCRA 388.
[106][106] Alunan III v. Mirasol, 342 Phil. 476
(1997); Viola v. Alunan III, 343
Phil. 184 (1997); Chief Superintendent
Acop v. Guingona, Jr., supra note 98; Roble
Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22, 2006, 499 SCRA
434, 447.
[107][107] Constitution, Article III, Sec. 7.
[108][108] 80 Phil. 383 (1948).
[109][109] Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530.
[110][110] 162 Phil. 868 (1976).
[111][111] Baldoza v. Dimaano, supra at 876.
[112][112] Legaspi v. Civil Service Commission, supra note 109.
[113][113] Chavez v. PCGG, 360 Phil 133, 164 (1998).
[114][114] In Legaspi v. Civil Service Commission, supra note 109 at 541, it was held that:
In determining whether or not a particular information is of public concern there is no rigid test which can be applied. `Public concern' like `public interest' is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.
[115][115] Respondents’ Comment of August 4, 2008, p. 9.
[116][116] Subido v. Ozaeta, supra note 108.
[117][117] Tañada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Tañada, v. Hon. Tuvera, 230 Phil. 528 (1986).
[118][118] Legaspi v. Civil Service Commission, supra note 109.
[119][119] Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170 SCRA 256.
[120][120] Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102.
[121][121] Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 177271, May 4, 2007, 523 SCRA 1.
[122][122] Chavez v. Public Estates Authority, 433 Phil. 506, 532-533 (2002).
[123][123] Vide V Record, Constitutional Commission 26-28 (September 24, 1986) which is replete with such descriptive phrase used by Commissioner Blas Ople.
[124][124] Constitution, Article II, Sec. 28.
[125][125] Bernas, Joaquin, The 1987 Constitution of the Republic of the Philippines: A Commentary 100 (2003).
[126][126] Vide Bernas, Joaquin, The Intent of the 1986 Constitution Writers 155 (1995).
[127][127] Vide Chavez v. Public Estates Authority, supra note 122.
[128][128] V Record, Constitutional Commission 25 (September 24, 1986).
[129][129] V Record, Constitutional Commission 28-29 (September 24, 1986). The phrase “safeguards on national interest” that may be provided by law was subsequently replaced by “reasonable conditions,” as proposed by Commissioner Davide [vide V Record, Constitutional Commission 30 (September 24, 1986)].
[130][130] In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 331, the Court stated:
x x x The duty to disclose covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the government agency. (Underscoring supplied)
[131][131] Valmonte v. Belmonte, Jr., supra note 119.
[132][132] V Record, Constitutional Commission 28, 30 (September 24, 1986).
[133][133] Supra note 55.
[134][134] Executive Order No. 3 (2001), Sec. 3 (a).
[135][135] Executive Order No. 3 (2001), Sec. 4 (b).
[136][136] Respondents’ Memorandum of September 24, 2008, p. 44.
[137][137] Executive Order No. 3 (2001), Sec. 5 (b), par. 6.
[138][138] Executive Order No. 3 (2001), Sec. 8, see also Sec. 10.
[139][139] Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7, 1989, 177 SCRA 374, 382-384 where it was held that the Omnibus Investment Code of 1987 mandates the holding of consultations with affected communities, whenever necessary, on the acceptability of locating the registered enterprise within the community.
[140][140] In their Memorandum, respondents made allegations purporting to show that consultations were conducted on August 30, 2001 in Marawi City and Iligan City, on September 20, 2001 in Midsayap, Cotabato, and on January 18-19, 2002 in Metro Manila. (Memorandum of September 24, 2008, p. 13)
[141][141] Cf. Chavez v. Public Estates Authority, supra note 120.
[142][142] Republic Act No. 7160, Sec. 2(c).
[143][143] Republic Act No. 7160, Sec. 27.
[144][144] 416 Phil. 438 (2001).
[145][145] Id.; vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243, November 29, 2006, 508 SCRA 498; Cf. Bangus Fry Fisherfolk v. Lanzanas, 453 Phil. 479 (2002).
[146][146] Vide MOA-AD “Concepts and Principles,” pars. 2 & 7 in relation to “Resources,” par. 9 where vested property rights are made subject to the cancellation, modification and review by the Bangsamoro Juridical Entity.
[147][147] Republic Act No. 8371 or “The Indigenous Peoples Rights Act of 1997,” Sec. 16.
[148][148] Id., Sec. 3 (g), Chapter VIII, inter alia.
[149][149] Tañada v. Tuvera, No. L-63915, December 29, 1986, 146 SCRA 446, 456.
[150][150] C.I. Keitner and W.M. Reisman, Free Association: The United States Experience, 39 Tex. Int'l L.J. 1 (2003).
[151][151] “The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the Marshall Islands, and the Northern Mariana Islands, which extend east of the Philippines and northeast of Indonesia in the North Pacific Ocean.” (Ibid.)
[152][152] H. Hills, Free Association for Micronesia and the Marshall islands: A Political Status Model, 27 U. Haw. L. Rev. 1 (2004).
[153][153] Henkin, et al., International Law: Cases and Materials, 2nd ed., 274 (1987).
[154][154] Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19.
[155][155] G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.
[156][156] An Act to Strengthen and Expand the Organic
Act for the Autonomous Region in Muslim Mindanao, Amending for the purpose
Republic Act No. 6734, Entitled ‘An Act Providing for the Autonomous Region in
Muslim Mindanao,’ as Amended, March 31, 2001.
[157][157] An
Act To Recognize, Protect And Promote The Rights Of Indigenous Cultural
Communities/Indigenous Peoples, Creating A National Commission On Indigenous
Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor,
And For Other Purposes, October 29, 1997.
[158][158] 90 Phil. 70, 73-74 (1951).
[159][159] 177 Phil. 160, 178-179 (1979).
[160][160] 2
S.C.R. 217 (1998).
[161][161] 999 U.N.T.S. 171 (March 23, 1976).
[162][162] 993 U.N.T.S. 3 (January 3, 1976).
[163][163] League of Nations Official Journal,
Special Supp. No. 3 (October 1920).
[164][164] Lorie M. Graham, Resolving Indigenous Claims To Self-Determination, 10 ILSA J. Int'l & Comp. L. 385 (2004). Vide S. James Anaya, Superpower Attitudes Toward Indigenous Peoples And Group Rights, 93 Am. Soc'y Int'l L. Proc. 251 (1999): “In general, the term indigenous is used in association with groups that maintain a continuity of cultural identity with historical communities that suffered some form of colonial invasion, and that by virtue of that continuity of cultural identity continue to distinguish themselves from others.”
[165][165] Catherine J. Iorns, Indigenous Peoples And Self Determination: Challenging State Sovereignty, 24 Case W. Res. J. Int'l L. 199 (1992).
[166][166] Federico
Lenzerini, “Sovereignty Revisited:
International Law And Parallel Sovereignty Of Indigenous Peoples,” 42 Tex. Int'l L.J. 155 (2006). Vide Christopher
J. Fromherz, Indigenous Peoples' Courts:
Egalitarian Juridical Pluralism, Self-Determination, And The United Nations Declaration On The Rights
Of Indigenous Peoples, 156 U. Pa. L. Rev. 1341 (2008): “While Australia and
the United States made much of the distinction between ‘self-government’ and
‘self-determination’ on September 13, 2007, the U.S. statement to the UN on May
17, 2004, seems to use these two concepts interchangeably. And, indeed, under
the DRIP [Declaration on the Rights of Indigenous Peoples], all three terms
should be considered virtually synonymous. Self-determination under the DRIP
means ‘internal self-determination’ when read in conjunction with Article 46,
and ‘self-government,’ articulated in Article 4, is the core of the
‘self-determination.’”
[167][167] Defining The Approach And Administrative Structure For Government’s Comprehensive Peace Efforts, September 15, 1993.
[168][168] 466 Phil. 482, 519-520 (2004).
[169][169] Constitution, Article VII, Sec. 18.
[170][170] Kirsti Samuels, Post-Conflict Peace-Building And Constitution-Making, 6 Chi. J. Int'l L. 663 (2006).
[171][171] Christine Bell, Peace Agreements: Their Nature And Legal Status, 100 Am. J. Int'l L. 373 (2006).
[172][172] Constitution, Article X, Sections 15-21.
[173][173] III Record, Constitutional Commission, 180 (August 11, 1986).
[174][174] 165 Phil. 303 (1976).
[175][175] Id. at 412.
[176][176] Id. at 413.
[177][177] G.R.
No. 174153, October 25,
2006, 505 SCRA 160, 264-265.
[178][178] Constitution, Art. VII, Sec. 5.
[179][179] Article
VI, Section 25 (1) of the Constitution states as follows: “The Congress may not
increase the appropriations recommended by the President for the operation of
the Government as specified in the budget. The form, content, and manner of
preparation of the budget shall be prescribed by law.”
[180][180] Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), March 13, 2004].
[181][181] 1974 I.C.J. 253, 1974 WL 3 (I.C.J.).
[182][182] M. Janis and J. Noyes, International Law, Cases and Commentary, 3rd ed. 280 (2006).
[183][183] 1986 I.C.J. 554, 1986 WL 15621 (I.C.J.), December 22, 1986.
[184][184] Planas v. COMELEC, 151 Phil. 217, 249 (1973).