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THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-

GOVERNOR EMMANUEL PIÑOL, for and in his own behalf, petitioners,


vs.
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.

G.R. No. 183591


October 14 2008

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:

1. Whether or not the constitutionality and the legality of the MOA is ripe for adjudication;

2. Whether or not there is a violation of the people’s right to information on matters of public
concern (Art 3 Sec. 7) under a state policy of full disclosure of all its transactions involving public
interest (Art 2, Sec 28) including public consultation under RA 7160 (Local Government Code of
1991)

3. 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)

HELD:

1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local
government units or communities affected constitutes a departure by respondents from their
mandate under EO No. 3. Moreover, the 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.

In Pimentel, Jr. v. Aguirre, 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.

That the law or act in question is not yet effective does not negate ripeness.

2. Yes. The Court finds that there is a grave violation of the Constitution involved in the matters of
public concern (Sec 7 Art III) under a state policy of full disclosure of all its transactions involving
public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local Government
Code of 1991).

(Sec 7 Art. III) The right to information guarantees the right of the people to demand
information, while Sec 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 are 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.

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.

3. (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;

Yes. 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 birth right 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 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.

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.

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