North Cotabato:

FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic Liberation
Front (MILF) were scheduled to sign a Memorandum of Agreement of the Ancestral Domain Aspect of the
GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel respondents
to disclose and furnish them the complete and official copies of the MA-AD and to prohibit the slated
signing of the MOA-AD and the holding of public consultation thereon. They also pray that the MOA-AD
be declared unconstitutional. The Court issued a TRO enjoining the GRP from signing the same.

ISSUES:
Whether or not the signing of 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)

Ruling:

The 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.

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, 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. 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.

b) to revise or amend the Constitution and existing laws to conform to the MOA:
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 .

It will be observed that the President has authority, as stated in her oath of office, 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 “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.

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)
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.

Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not only “Moros” as
traditionally understood even by Muslims, 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.
Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.

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.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations beforeany 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.

CONCLUSION:
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.