THE PROVINCE OF NORTH COTABATO, et al . v .

THE GOVERNMENT OF
THE REPUBLIC OF THE PHILIPPINES, et al .

President Gloria Macapagal-Arroyo, in line with the government‘s policy of pursuing

peace negotiations with the Moro Islamic Liberation Front (MILF), asked Prime
Minister Mahathir Mohammad to convince the MILF to continue negotiating with the
government. MILF, thereafter, convened its Central Committee and decided to meet
with the Government of the Republic of the Philippines (GRP). Formal peace talks were
held in Libya which resulted to the crafting of the GRP-MILF Tripoli Agreement on
Peace (Tripoli Agreement 2001) which consists of three (3) aspects: a.) security aspect;
b.) rehabilitation aspect; and c.) ancestral domain aspect. Various negotiations were
held which led to the finalization of the Memorandum of Agreement on the Ancestral
Domain (MOA-AD). The said memorandum was set to be signed last August 5, 2008. In
its body, it grants ―the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The
latter, in addition, has the freedom to enter into any economic cooperation and trade
relation with foreign countries. ―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. The MOA-AD further provides for the extent of the territory of the Bangsamoro. It
describes it 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. With regard to governance,
on the other hand, a shared responsibility and authority between the Central
Government and BJE was provided. The relationship was described as ―associative.
With the formulation of the MOA-AD, petitioners aver that the negotiation and
finalization of the MOA-AD violates constitutional and statutory provisions on public
consultation, as mandated by Executive Order No. 3, and right to information. They
further contend that it violates the Constitution and laws. Hence, the filing of the
petition.

ISSUES:

1) Whether or not the MOA-AD violates constitutional and statutory provisions on

public consultation and right to information 2) Whether or not the MOA-AD violates the
Constitution and the laws.

HELD:

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. Intended as a ―splendid symmetry to the right to information under
the Bill of Rights is the policy of public disclosure under Section 28, Article II of the
Constitution which provides that 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. Moreover, the policy of full public disclosure enunciated in
above-quoted Section 28 complements the right of access to informationon 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. The policy of public disclosure
establishes a concreteethical principle for the conduct of public affairs in a genuinely
open democracy, with the people‘s right to know as the centerpiece. It is a mandate of
the State to be accountable by following such policy. These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at all times
accountable to the people. 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 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. Envisioned to be corollary to the twin rights to information and disclosure
is the design for feedback mechanisms. 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. 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. 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.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.Further, E.O. No. 3 enumerates the functions and responsibilities of the
PAPP, one of which is to ―conduct 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. E.O. No. 3 mandates the establishment of the NPF to
be ―the principal forum for the Presidential Adviser on Peace Progress (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. 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. 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. 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. The MOA-AD 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.
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, namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.
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 M OA-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.
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.
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. 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.
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.