PROVINCE OF NORTH COTABATO V.

GRP official copy of the final draft of the MOA-AD,14 to which she
(International Law) complied.

Facts: GR 183893 - City of Iligan

- On August 5, 2008, the Government of the Republic of the Action: petition for Injunction and/or Declaratory Relief
Philippines (GRP) and the MILF, through the Chairpersons of Prayer: respondents be enjoined from signing the MOA-AD or, if
their respective peace negotiating panels, were scheduled to the same had already been signed, from implementing the same,
sign a Memorandum of Agreement on the Ancestral Domain and that the MOA-AD be declared unconstitutional.
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on G.R. No. 183951 - Province of Zamboanga Del Norte
Peace of 2001 in Kuala Lumpur, Malaysia.
G.R. No. 183962 - Ernesto Maceda, Jejomar Binay, and Aquilino
- The signing of the MOA-AD between the GRP and the MILF Pimentel III filed a petition for Prohibition
was not to materialize, however, for upon motion of petitioners,
specifically those who filed their cases before the scheduled -
signing of the MOA-AD, this Court issued a Temporary Respondents, by Manifestation and Motion of August 19,
Restraining Order enjoining the GRP from signing the same. 2008, stated that the Executive Department shall thoroughly
review the MOA-AD and pursue further negotiations to
- On July 18, 1997, the GRP and MILF Peace Panels signed the address the issues hurled against it, and thus moved to
Agreement on General Cessation of Hostilities. The following dismiss the cases.
year, they signed the General Framework of Agreement of
Intent on August 27, 1998. Overview of the MOA-AD:
- The Solicitor General, who represents respondents,
summarizes the MOA-AD by stating that the same contained, CONCEPT
among others, the commitment of the parties to pursue peace It defines “Bangsamoro people” as the natives or
negotiations, protect and respect human rights, negotiate with original inhabitants of Mindanao and its adjacent islands including
sincerity in the resolution and pacific settlement of the conflict, Palawan and the Sulu archipelago at the time of conquest or
and refrain from the use of threat or force to attain undue colonization, and their descendants whether mixed or of full
advantage while the peace negotiations on the substantive blood, including their spouses.30
agenda are on-going. Thus, the concept of “Bangsamoro,” as defined in this
- Early on, however, it was evident that there was not going to strand of the MOA-AD, includes not only “Moros” as traditionally
understood even by Muslims,31 but all indigenous peoples of
be any smooth sailing in the GRP-MILF peace process.
Mindanao and its adjacent islands. The MOA-AD adds that the
Towards the end of 1999 up to early 2000, the MILF attacked
freedom of choice of indigenous peoples shall be respected.
a number of municipalities in Central Mindanao and, in March
What this freedom of choice consists in has not been specifically
2000, it took control of the town hall of Kauswagan, Lanao del
defined.
Norte. In response, then President Joseph Estrada declared
The MOA-AD proceeds to refer to the “Bangsamoro
and carried out an “all-out-war” against the MILF.
homeland,” the ownership of which is vested exclusively in the
- When President Gloria Macapagal-Arroyo assumed office, the Bangsamoro people by virtue of their prior rights of occupation.32
military offensive against the MILF was suspended and the Both parties to the MOA-AD acknowledge that ancestral domain
government sought a resumption of the peace talks. does not form part of the public domain.33
- The parties met in Kuala Lumpur on March 24, 2001, with the The Bangsamoro people are acknowledged as having
talks being facilitated by the Malaysian government, the parties the right to self-governance, which right is said to be rooted on
signing on the same date the Agreement on the General ancestral territoriality exercised originally under the suzerain
Framework for the Resumption of Peace Talks Between the authority of their sultanates and the Pat a Pangampong ku
GRP and the MILF. The MILF thereafter suspended all its Ranaw.
military actions. The MOA-AD then mentions for the first time the
- Formal peace talks between the parties were held in Tripoli, “Bangsamoro Juridical Entity” (BJE) to which it grants the
authority and jurisdiction over the Ancestral Domain and
Libya from June 20-22, 2001, the outcome of which was the Ancestral Lands of the Bangsamoro.
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the TERRITORY
following aspects of the negotiation: Security Aspect, The core of the BJE is defined as the present geographic
Rehabilitation Aspect, and Ancestral Domain Aspect. area of the ARMM—thus constituting the following areas: Lanao
Nonetheless, there were many incidence of violence between del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi
government forces and the MILF from 2002 to 2003. City. Significantly, this core also includes certain municipalities of
Lanao del Norte that voted for inclusion in the ARMM in the 2001
GR 183591 - Province of North Cot plebiscite.
Action: Petition for Mandamus and Prohibition with Prayer for the The Parties to the MOA-AD stipulate that the BJE shall
Issuance of Writ of Preliminary Injunction and Temporary have jurisdiction over all natural resources within its “internal
Restraining Order waters,” defined as extending fifteen (15) kilometers from the
Why? the right to information on matters of public concern, coastline of the BJE area;42 that the BJE shall also have “territorial
petitioners seek to compel respondents to disclose and furnish waters,” which shall stretch beyond the BJE internal waters up to
them the complete and official copies of the MOA-AD including its the baselines of the Republic of the Philippines (RP) south east
attachments, and to prohibit the slated signing of the MOA-AD, and south west of mainland Mindanao; and that within these
pending the disclosure of the contents of the MOA-AD and the territorial waters, the BJE and the “Central Government” (used
holding of a public consultation thereon. interchangeably with RP) shall exercise joint jurisdiction, authority
and management over all natural resources.43 Notably, the
GR 183752 - City of Zamboanga jurisdiction over the internal waters is not similarly described as
Action: Same “joint.”
Prayer? that the City of Zamboanga be excluded from the The MOA-AD further provides for the sharing of
Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, minerals on the territorial waters between the Central
in the alternative, that the MOA-AD be declared null and void. Government and the BJE, in favor of the latter, through production
sharing and economic cooperation agreement.
- By Resolution of August 4, 2008, the Court issued a
Temporary Restraining Order commanding and directing RESOURCES
public respondents and their agents to cease and desist from The BJE is free to enter into any economic cooperation
formally signing the MOA-AD.13 The Court also required the and trade relations with foreign countries and shall have the
Solicitor General to submit to the Court and petitioners the option to establish trade missions in those countries.
The sharing between the Central Government and the
BJE of total production pertaining to natural resources is to be voting against being Australia, Canada, New Zealand, and the
75:25 in favor of the BJE. U.S. The Declaration clearly recognized the right of indigenous
The BJE may modify or cancel the forest concessions, peoples to self-determination, encompassing the right to
timber licenses, contracts or agreements, mining concessions, autonomy or self-government, to wit:
Mineral Production and Sharing Agreements (MPSA), Industrial Article 3
Forest Management Agreements (IFMA), and other land tenure Indigenous peoples have the right to self-determination. By virtue
instruments granted by the Philippine Government, including of that right they freely determine their political status and freely
those issued by the present ARMM pursue their economic, social and cultural development.
Article 4
GOVERNANCE Indigenous peoples, in exercising their right to self-determination,
The MOA-AD describes the relationship of the Central have the right to autonomy or self-government in matters relating
Government and the BJE as “associative,” characterized by to their internal and local affairs, as well as ways and means for
shared authority and responsibility. financing their autonomous functions.

Self-government, as used in international legal discourse

ISSUE: pertaining to indigenous peoples, has been understood as
Do the contents of the MOA-AD violate the Constitution and equivalent to “internal self-determination.
the laws?
Assuming that the UN DRIP, like the Universal Declaration on
Human Rights, must now be regarded as embodying customary
RULING: international law—a question which the Court need not
I. IS THE CONCEPT OF ASSOCIATION EMBODIED IN THE definitively resolve here—the obligations enumerated therein do
MOA-AD RECOGNIZED UNDER THE CONSTITUTION? NO. not strictly require the Republic to grant the Bangsamoro people,
The relationship between the Central Government and the through the instrumentality of the BJE, the particular rights and
Bangsamoro juridical entity shall be associative characterized by powers provided for in the MOA-AD. Moreover, the UN DRIP,
shared authority and responsibility with a structure of governance while upholding the right of indigenous peoples to autonomy,
based on executive, legislative, judicial and administrative does not obligate States to grant indigenous peoples the near-
institutions with defined powers and functions in the independent status of an associated state.
comprehensive compact.
“[a]n association is formed when two states of unequal power IV. Is the president authorised to conduct the peace negotiations?
voluntarily establish durable links. In the basic model, one state, YES, subject to the exemptions. As the Chief Executive and
the associate, delegates certain responsibilities to the other, the Commander in Chief. The principle may be inferred that the
principal, while maintaining its international status as a state. Free President—in the course of conducting peace negotiations—may
associations represent a middle ground between integration and validly consider implementing even those policies that require
independence. changes to the Constitution, but she may not unilaterally
Back to the MOA-AD, it contains many provisions which are implement them without the intervention of Congress, or act in
consistent with the international legal concept of association, any way as if the assent of that body were assumed as a
specifically the following: the BJE’s capacity to enter into certainty.
economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE’s V. Is the MOA-AD a binding international law agreement or a
participation in meetings and events in the ASEAN and the unilateral declaration? None of the above.
specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. It is not a binding international law agreement since similar to the
the Lome Accord Case, the MOA-AD would have been signed by
No province, city, or municipality, not even the ARMM, is representatives of States and international organizations not
recognized under our laws as having an “associative” relationship parties to the Agreement would not have sufficed to vest in it a
with the national government. Indeed, the concept implies powers binding character under international law.
that go beyond anything ever granted by the Constitution to any
local or regional government. It also implies the recognition of the As gathered from the Nuclear Test case involving France, public
associated entity as a state. The Constitution, however, does not statements of a state representative may be construed as a
contemplate any state in this jurisdiction other than the Philippine unilateral declaration only when the following conditions are
State, much less does it provide for a transitory status that aims present: the statements were clearly addressed to the
to prepare any part of Philippine territory for independence. international community, the state intended to be bound to that
community by its statements, and that not to give legal effect to
II. ARE THE POWERS VESTED TO THE BJE RECOGNIZED those statements would be detrimental to the security of
UNDER OUR CONSTITUTION? NO. international intercourse. Plainly, unilateral declarations arise only
in peculiar circumstances.
Under our constitutional system, it is only the President who has
that power. Pimentel v. Executive Secretary155 instructs: Assessing the MOA-AD in light of the above criteria, it would
“In our system of government, the President, being the head of not have amounted to a unilateral declaration on the part of the
state, is regarded as the sole organ and authority in external Philippine State to the international community. The Philippine
relations and is the country’s sole representative with foreign panel did not draft the same with the clear intention of being
nations. As the chief architect of foreign policy, the President acts bound thereby to the international community as a whole or to any
as the country’s mouthpiece with respect to international affairs. State, but only to the MILF. While there were States and
Hence, the President is vested with the authority to deal with international organizations involved, one way or another, in the
foreign states and governments, extend or withhold recognition, negotiation and projected signing of the MOA-AD, they
maintain diplomatic relations, enter into treaties, and otherwise participated merely as witnesses or, in the case of Malaysia, as
transact the business of foreign relations. In the realm of treaty- facilitator. As held in the Lomé Accord case, the mere fact that in
making, the President has the sole authority to negotiate with addition to the parties to the conflict, the peace settlement is
other states.” (Emphasis and underscoring supplied) signed by representatives of states and international
organizations does not mean that the agreement is
III. IS THE GRP obliged to grant the Bangsamoro People the internationalized so as to create obligations in international law.
particular rights provided for in the MOA-AD according to the Since the commitments in the MOA-AD were not addressed
international law? NO. to States, not to give legal effect to such commitments would not
In a historic development last September 13, 2007, the UN be detrimental to the security of international intercourse—to the
General Assembly adopted the United Nations Declaration on the trust and confidence essential in the relations among States.
Rights of Indigenous Peoples (UN DRIP) through General
Assembly Resolution 61/295. The vote was 143 to 4, the The MOA-AD not being a document that can bind the Philippines
Philippines being included among those in favor, and the four under international law notwithstanding, respondents’ almost
consummated act of guaranteeing amendments to the legal therein. The MOA-AD is one peculiar program that unequivocally
framework is, by itself, sufficient to constitute grave abuse of and unilaterally vests ownership of a vast territory to the
discretion. The grave abuse lies not in the fact that they Bangsamoro people, which could pervasively and drastically
considered, as a solution to the Moro Problem, the creation of a result to the diaspora or displacement of a great number of
state within a state, but in their brazen willingness to guarantee inhabitants from their total environment.
that Congress and the sovereign Filipino people would give their Three, Republic Act No. 8371 or the Indigenous Peoples
imprimatur to their solution. Rights Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which entails,
SUMMARY among other things, the observance of the free and prior informed
The petitions are ripe for adjudication. The failure of respondents consent of the Indigenous Cultural Communities/Indigenous
to consult the local government units or communities affected Peoples. Notably, the statute does not grant the Executive
constitutes a departure by respondents from their mandate under Department or any government agency the power to delineate
E.O. No. 3. Moreover, respondents exceeded their authority by and recognize an ancestral domain claim by mere agreement or
the mere act of guaranteeing amendments to the Constitution. compromise.
Any alleged violation of the Constitution by any branch of The invocation of the doctrine of executive privilege as a
government is a proper matter for judicial review. defense to the general right to information or the specific right to
As the petitions involve constitutional issues which are of consultation is untenable. The various explicit legal provisions fly
paramount public interest or of transcendental importance, the in the face of executive secrecy. In any event, respondents
Court grants the petitioners, petitioners-in-intervention and effectively waived such defense after it unconditionally disclosed
intervening respondents the requisite locus standi in keeping with the official copies of the final draft of the MOA-AD, for judicial
the liberal stance adopted in David v. Macapagal-Arroyo. compliance and public scrutiny.
Contrary to the assertion of respondents that the non-signing of
the MOA-AD and the eventual dissolution of the GRP Peace In sum, the Presidential Adviser on the Peace Process committed
Panel mooted the present petitions, the Court finds that the grave abuse of discretion when he failed to carry out the pertinent
present petitions provide an exception to the “moot and consultation process, as mandated by E.O. No. 3, Republic Act
academic” principle in view of (a) the grave violation of the No. 7160, and Republic Act No. 8371. The furtive process by
Constitution involved; (b) the exceptional character of the which the MOA-AD was designed and crafted runs contrary to
situation and paramount public interest; (c) the need to formulate and in excess of the legal authority, and amounts to a whimsical,
controlling principles to guide the bench, the bar, capricious, oppressive, arbitrary and despotic exercise thereof. It
and the public; and (d) the fact that the case is capable of illustrates a gross evasion of positive duty and a virtual refusal to
repetition yet evading review. perform the duty enjoined.
The MOA-AD is a significant part of a series of agreements The MOA-AD cannot be reconciled with the present
necessary to carry out the GRP-MILF Tripoli Agreement on Peace Constitution and laws. Not only its specific provisions but the very
signed by the government and the MILF back in June 2001. concept underlying them, namely, the associative relationship
Hence, the present MOA-AD can be renegotiated or another one envisioned between the GRP and the BJE, are unconstitutional,
drawn up that could contain similar or significantly dissimilar for the concept presupposes that the associated entity is a state
provisions compared to the original. and implies that the same is on its way to independence.
The Court, however, finds that the prayers for mandamus have While there is a clause in the MOA-AD stating that the
been rendered moot in view of the respondents’ action in provisions thereof inconsistent with the present legal framework
providing the Court and the petitioners with the official copy of the will not be effective until that framework is amended, the same
final draft of the MOA-AD and its annexes. does not cure its defect. The inclusion of provisions in the MOA-
The people’s right to information on matters of public concern AD establishing an associative relationship between the BJE and
under Sec. 7, Article III of the Constitution is in splendid symmetry the Central Government is, itself, a violation of the Memorandum
with the state policy of full public disclosure of all its transactions of Instructions From The President dated March 1, 2001,
involving public interest under Sec. 28, Article II of the addressed to the government peace panel. Moreover, as the
Constitution. The right to information guarantees the right of the clause is worded, it virtually guarantees that the necessary
people to demand information, while Section 28 recognizes the amendments to the Constitution and the laws will eventually be
duty of officialdom to give information even if nobody demands. put in place. Neither the GRP Peace Panel nor the President
The complete and effective exercise of the right to information herself is authorized to make such a guarantee. Upholding such
necessitates that its complementary provision on public an act would amount to authorizing a usurpation of the constituent
disclosure derive the same self-executory nature, subject only to powers vested only in Congress, a Constitutional Convention, or
reasonable safeguards or limitations as may be provided by law. the people themselves through the process of initiative, for the
The contents of the MOA-AD is a matter of paramount public only way that the Executive can ensure the outcome of the
concern involving public interest in the highest order. In declaring amendment process is through an undue influence or
that the right to information contemplates steps and negotiations interference with that process.
leading to the consummation of the contract, jurisprudence finds While the MOA-AD would not amount to an international
no distinction as to the executory nature or commercial character agreement or unilateral declaration binding on the Philippines
of the agreement. under international law, respondents’ act of guaranteeing
An essential element of these twin freedoms is to keep a amendments is, by itself, already a constitutional violation that
continuing dialogue or process of communication between the renders the MOA-AD fatally defective.
government and the people. Corollary to these twin rights is the WHEREFORE, respondents’ motion to dismiss is DENIED. The
design for feedback mechanisms. The right to public consultation main and intervening petitions are GIVEN DUE COURSE and
was envisioned to be a species of these public rights. hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect
At least three pertinent laws animate these constitutional of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared
imperatives and justify the exercise of the people’s right to be contrary to law and the Constitution.
consulted on relevant matters relating to the peace agenda. SO ORDERED.
One, 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.
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