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EN BANC
Promulgated: October 14, 2008THE PROVINCE OF NORTH COTABATO, duly represented byGOVERNOR JESUS SACDALAN and/or VICE-GOVERNOREMMANUEL PIÑOL, for and in his own behalf, Petitioners,- versus -THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented bySEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.HERMOGENES ESPERON, JR., the latter in his capacity as thepresent and duly-appointed Presidential Adviser on the PeaceProcess (OPAPP) or the so-called Office of the PresidentialAdviser on the Peace Process, Respondents.And many intervenors---------------------------
D E C I S I O N
CARPIO MORALES, J.:Subject of these consolidated cases is the extent of thepowers of the President in pursuing the peace process. Whilethe facts surrounding this controversy center on the armedconflict in Mindanao between the government and the MoroIslamic Liberation Front (MILF), the legal issue involved has abearing on all areas in the country where there has been along-standing armed conflict. Yet again, the Court is taskedto perform a delicate balancing act. It mustuncompromisingly delineate the bounds within which thePresident may lawfully exercise her discretion, but it must doso in strict adherence to the Constitution, lest its rulingunduly restricts the freedom of action vested by that sameConstitution in the Chief Executive precisely to enable her topursue 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 Chairpersonsof their respective peace negotiating panels, were scheduledto sign a Memorandum of Agreement on the AncestralDomain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreementon Peace of 2001 in Kuala Lumpur, Malaysia.The MILF is a rebel group which was established in March1984 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 MNLFaway from an Islamic basis towards Marxist-Maoistorientations.[1]The signing of the MOA-AD between the GRP and the MILFwas not to materialize, however, for upon motion of petitioners, specifically those who filed their cases before thescheduled signing of the MOA-AD, this Court issued aTemporary Restraining Order enjoining the GRP from signingthe same.The MOA-AD was preceded by a long process of negotiationand the concluding of several prior agreements between thetwo parties beginning in 1996, when the GRP-MILF peacenegotiations began. On July 18, 1997, the GRP and MILFPeace Panels signed the Agreement on General Cessation of Hostilities. The following year, they signed the GeneralFramework 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 peacenegotiations, protect and respect human rights, negotiatewith sincerity in the resolution and pacific settlement of theconflict, and refrain from the use of threat or force to attainundue advantage while the peace negotiations on thesubstantive agenda are on-going.[2]The parties met in Kuala Lumpur on March 24, 2001, with thetalks being facilitated by the Malaysian government, theparties signing on the same date the Agreement on theGeneral Framework for the Resumption of Peace TalksBetween the GRP and the MILF. The MILF thereaftersuspended all its military actions.[5]Formal peace talks between the parties were held in Tripoli,Libya from June 20-22, 2001, the outcome of which was theGRP-MILF Tripoli Agreement on Peace (Tripoli Agreement2001) containing the basic principles and agenda on thefollowing aspects of the negotiation: Security Aspect,Rehabilitation Aspect, and Ancestral Domain Aspect. Withregard to the Ancestral Domain Aspect, the parties in TripoliAgreement 2001 simply agreed “that the same be discussedfurther 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 theTripoli Agreement 2001 leading to a ceasefire status betweenthe parties. This was followed by the ImplementingGuidelines on the Humanitarian Rehabilitation andDevelopment Aspects of the Tripoli Agreement 2001, whichwas signed on May 7, 2002 at Putrajaya, Malaysia.Nonetheless, there were many incidence of violence betweengovernment forces and the MILF from 2002 to 2003.In 2005, several exploratory talks were held between theparties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, wasset to be signed last August 5, 2008.
II. Statement of the proceedings
On July 23, 2008, the Province of North Cotabato[8] andVice-Governor Emmanuel Piñol filed a petition, docketed asG.R. No. 183591, for Mandamus and Prohibition with Prayerfor the Issuance of Writ of Preliminary Injunction andTemporary Restraining Order.[9] Invoking the right toinformation on matters of public concern, petitioners seek tocompel respondents to disclose and furnish them thecomplete and official copies of the MOA-AD including itsattachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-ADand the holding of a public consultation thereon.Supplementarily, petitioners pray that the MOA-AD bedeclared unconstitutional.[10]This initial petition was followed by another one who likewisepray for similar injunctive reliefs, in the alternative, that theMOA-AD be declared null and void.By Resolution of August 4, 2008, the Court issued aTemporary Restraining Order commanding and directingpublic respondents and their agents to cease and desist fromformally signing the MOA-AD.[13] The Court also requiredthe Solicitor General to submit to the Court and petitionersthe official copy of the final draft of the MOA-AD,[14] to whichshe complied.[15]Meanwhile, the City of Iligan[16] filed a petition for Injunctionand/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, fromimplementing the same, and that the MOA-AD be declaredunconstitutional. Petitioners herein additionally impleadExecutive Secretary Eduardo Ermita as respondent.
 
The Province of Zamboanga del Norte,[17] Governor RolandoYebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members[18] of theSangguniang Panlalawigan of Zamboanga del Norte filed onAugust 15, 2008 a petition for Certiorari, Mandamus andProhibition,[19] docketed as G.R. No. 183951. They pray,inter alia, that the MOA-AD be declared null and void andwithout operative effect, and that respondents be enjoinedfrom executing the MOA-AD.On August 19, 2008, Ernesto Maceda, Jejomar Binay, andAquilino Pimentel III filed a petition for Prohibition,[20]docketed as G.R. No. 183962, praying for a judgmentprohibiting and permanently enjoining respondents fromformally signing and executing the MOA-AD and or any otheragreement derived therefrom or similar thereto, and nullifyingthe MOA-AD for being unconstitutional and illegal. Petitionersherein additionally implead as respondent the MILF PeaceNegotiating Panel represented by its Chairman MohagherIqbal.Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention.By subsequent Resolutions, the Court ordered theconsolidation of the petitions. Respondents filed Commentson the petitions, while some of petitioners submitted theirrespective Replies.The cases were heard on oral argument on August 15, 22 and29, 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 theMemorandum of Agreement (MOA); and(ii) insofar as the prohibition aspect involving the LocalGovernment Units is concerned, if it is considered thatconsultation has become fait accompli with the finalization of the draft;2. Whether the constitutionality and the legality of the MOAis ripe for adjudication;3. Whether respondent Government of the Republic of thePhilippines Peace Panel committed grave abuse of discretionamounting to lack or excess of jurisdiction when it negotiatedand initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;4. Whether there is a violation of the people’s right toinformation on matters of public concern (1987 Constitution,Article III, Sec. 7) under a state policy of full disclosure of allits transactions involving public interest (1987 Constitution,Article II, Sec. 28) including public consultation underRepublic 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 theRepublic 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 politicalsubdivision not recognized by law;b) to revise or amend the Constitution and existing laws toconform to the MOA;c) to concede to or recognize the claim of the Moro IslamicLiberation Front for ancestral domain in violation of RepublicAct No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF1997), particularly Section 3(g) & Chapter VII (DELINEATION,RECOGNITION OF ANCESTRAL DOMAINS)[;]If in the affirmative, whether the Executive Branch has theauthority to so bind the Government of the Republic of thePhilippines;6. Whether the inclusion/exclusion of the Province of NorthCotabato, Cities of Zamboanga, Iligan and Isabela, and theMunicipality of Linamon, Lanao del Norte in/from the areascovered by the projected Bangsamoro Homeland is a justiciable question; and7. Whether desistance from signing the MOA derogates anyprior valid commitments of the Government of the Republic of the Philippines.[24]
III. Overview of the MOA-AD
The MOA-AD identifies the Parties to it as the GRP and theMILF.The MOA-AD also identifies as TOR two local statutes – theorganic act for the Autonomous Region in Muslim Mindanao(ARMM)[25] and the Indigenous Peoples Rights Act (IPRA),[26] and several international law instruments – the ILOConvention No. 169 Concerning Indigenous and Tribal Peoplesin Independent Countries in relation to the UN Declaration onthe Rights of the Indigenous Peoples, and the UN Charter,among others.
A. Concepts and Principles
This strand begins with the statement that it is “the birthrightof all Moros and all Indigenous peoples of Mindanao toidentify themselves and be accepted as ‘Bangsamoros.’” Itdefines “Bangsamoro people” as the natives or originalinhabitants of Mindanao and its adjacent islands includingPalawan and the Sulu archipelago at the time of conquest orcolonization, and their descendants whether mixed or of fullblood, including their spouses.[30]Thus, the concept of “Bangsamoro,” as defined in this strandof the MOA-AD, includes not only “Moros” as traditionallyunderstood even by Muslims,[31] but all indigenous peoplesof Mindanao and its adjacent islands. The MOA-AD adds thatthe freedom of choice of indigenous peoples shall berespected. What this freedom of choice consists in has notbeen specifically defined.The MOA-AD proceeds to refer to the “Bangsamorohomeland,” the ownership of which is vested exclusively inthe Bangsamoro people by virtue of their prior rights of occupation.[32] Both parties to the MOA-AD acknowledgethat ancestral domain does not form part of the publicdomain.[33]
IV. PROCEDURAL ISSUESA. Ripeness
The power of judicial review is limited to actual cases orcontroversies.[54] Courts decline to issue advisory opinionsor to resolve hypothetical or feigned problems, or mereacademic questions.[55] The limitation of the power of  judicial review to actual cases and controversies defines therole assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areascommitted to the other branches of government.[56]An actual case or controversy involves a conflict of legalrights, an assertion of opposite legal claims, susceptible of  judicial resolution as distinguished from a hypothetical orabstract difference or dispute. There must be a contrariety of 
 
legal rights that can be interpreted and enforced on the basisof existing law and jurisprudence.[57] The Court can decidethe constitutionality of an act or treaty only when a propercase between opposing parties is submitted for judicialdetermination.[58]Related to the requirement of an actual case or controversy isthe requirement of ripeness. A question is ripe foradjudication when the act being challenged has had a directadverse effect on the individual challenging it.[59] For a caseto be considered ripe for adjudication, it is a prerequisite thatsomething had then been accomplished or performed byeither branch before a court may come into the picture,[60]and the petitioner must allege the existence of an immediateor threatened injury to itself as a result of the challengedaction.[61] He must show that he has sustained or isimmediately in danger of sustaining some direct injury as aresult of the act complained of.[62]The Solicitor General argues that there is no justiciablecontroversy that is ripe for judicial review in the presentpetitions, reasoning that The unsigned MOA-AD is simply alist of consensus points subject to further negotiations andlegislative enactments as well as constitutional processesaimed at attaining a final peaceful agreement. Simply put,the MOA-AD remains to be a proposal that does notautomatically create legally demandable rights andobligations until the list of operative acts required have beenduly complied with. x x x x x x xThe Solicitor General’s arguments fail to persuade.Concrete acts under the MOA-AD are not necessary to renderthe present controversy ripe. In Pimentel, Jr. v. Aguirre,[65]this Court held:x x x [B]y the mere enactment of the questioned law or theapproval of the challenged action, the dispute is said to haveripened into a judicial controversy even without any otherovert act. Indeed, even a singular violation of theConstitution and/or the law is enough to awaken judicial duty.x x x xBy the same token, when an act of the President, who in ourconstitutional scheme is a coequal of Congress, is seriouslyalleged to have infringed the Constitution and the laws x x xsettling the dispute becomes the duty and the responsibilityof the courts.[66]That the law or act in question is not yet effective does notnegate ripenessThe present petitions allege that respondents GRP Panel andPAPP Esperon drafted the terms of the MOA-AD withoutconsulting the local government units or communitiesaffected, nor informing them of the proceedings. As will bediscussed in greater detail later, such omission, by itself,constitutes a departure by respondents from their mandateunder E.O. No. 3.Furthermore, the petitions allege that the provisions of theMOA-AD violate the Constitution. The MOA-AD provides that “any provisions of the MOA-AD requiring amendments to theexisting legal framework shall come into force upon thesigning of a Comprehensive Compact and upon effecting thenecessary changes to the legal framework,” implying anamendment of the Constitution to accommodate the MOA-AD.This stipulation, in effect, guaranteed to the MILF theamendment of the Constitution.
B. Locus Standi
For a party to have locus standi, one must allege “sucha personal stake in the outcome of the controversy as toassure that concrete adverseness which sharpens thepresentation of issues upon which the court so largelydepends for illumination of difficult constitutionalquestions.”[78]B. MootnessRespondents insist that the present petitions have beenrendered moot with the satisfaction of all the reliefs prayedfor by petitioners and the subsequent pronouncement of theExecutive Secretary that “[n]o matter what the SupremeCourt ultimately decides[,] the government will not sign theMOA.”[92]Petitions not mootedIn fact, as what will, in the main, be discussed, there is acommitment on the part of respondents to amend and effectnecessary changes to the existing legal framework for certainprovisions of the MOA-AD to take effect. Consequently, thepresent petitions are not confined to the terms and provisionsof the MOA-AD, but to other on-going and future negotiationsand agreements necessary for its realization. The petitionshave not, therefore, been rendered moot and academicsimply by the public disclosure of the MOA-AD,[102] themanifestation that it will not be signed as well as thedisbanding of the GRP Panel not withstanding.
V. SUBSTANTIVE ISSUES
These provisions of the MOA indicate, among other things,that the Parties aimed to vest in the BJE the status of anassociated state or, at any rate, a status closelyapproximating it.The concept of association is not recognized under thepresent ConstitutionNo province, city, or municipality, not even the ARMM, isrecognized under our laws as having an “associative” relationship with the national government. Indeed, theconcept implies powers that go beyond anything ever grantedby the Constitution to any local or regional government. Italso implies the recognition of the associated entity as astate. The Constitution, however, does not contemplate anystate in this jurisdiction other than the Philippine State, muchless does it provide for a transitory status that aims toprepare any part of Philippine territory for independence.The BJE is a far more powerful entity than theautonomous region recognized in the ConstitutionIt is not merely an expanded version of the ARMM, the statusof its relationship with the national government beingfundamentally different from that of the ARMM. Indeed, BJEis a state in all but name as it meets the criteria of a statelaid down in the Montevideo Convention,[154] namely, apermanent population, a defined territory, a government, anda capacity to enter into relations with other states.Even assuming arguendo that the MOA-AD would notnecessarily sever any portion of Philippine territory, the spiritanimating it – which has betrayed itself by its use of theconcept of association – runs counter to the nationalsovereignty and territorial integrity of the Republic.The defining concept underlying the relationship between thenational government and the BJE being itself contrary to thepresent Constitution, it is not surprising that many of thespecific provisions of the MOA-AD on the formation and
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