CASE DIGEST: THE PROVINCE OF

NORTH COTABATO, ET AL . V . THE

GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES, ET AL .
Published by arce on September 7, 2013 | Leave a response

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 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. 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. 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.