Case Digest: GR No.

183591
2/4/2015
2 Comments

Province of North Cotabato, Province of Zamboanga Del Norte, City of Iligan, City of Zamboanga,
petitioners in intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linnamon,
Intervenors Franklin Drilon and Adel Tamano and Sec. Mar Roxas
-vsErmita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura Administrator National Mapping &
Resource Information Authority and Davide Jr. and respondents in intervention Muslim Multi-Sectoral
Movement for Peace and Development and Muslim Legal Assistance Foundation Inc.,
Facts:
Subject of this case is the Memorandum of Agreement on the Ancestral Domain (MOA-AD) which is
scheduled to be signed by the Government of the Republic of the Philippines and the MILF in August 05,
2008. Five cases bearing the same subject matter were consolidated by this court namely:

GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer to
declare unconstitutional and to have the MOA-AD disclosed to the public and be
open for public consultation.
GR 183752 by the City of Zamboanga et al on its prayer to declare null and void
said MOA-AD and to exclude the city to the BJE.
GR 183893 by the City of Iligan enjoining the respondents from signing the MOAAD and additionally impleading Exec. Sec. Ermita.
GR 183951 by the Province of Zamboanga del Norte et al, praying to declare null
and void the MOA-AD and without operative effect and those respondents enjoined
from executing the MOA-AD.
GR 183692 by Maceda, Binay and Pimentel III, praying for a judgment prohibiting
and permanently enjoining respondents from formally signing and executing the
MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal and impleading Iqbal.

The MOA-AD is a result of various agreements entered into by and between the government and
the MILF starting in 1996; then in 1997, they signed the Agreement on General Cessation of Hostilities;
and the following year, they signed the General Framework of Agreement of Intent on August 27, 1998.

However, in 1999 and in the early of 2000, the MILF attacked a number of municipalities in Central
Mindanao. In March 2000, they took the hall of Kauswagan, Lanao del Norte; hence, then Pres. Estrada
declared an all-out war-which tolled the peace negotiation. It was when then Pres. Arroyo assumed
office, when the negotiation regarding peace in Mindanao continued. MILF was hesitant; however, this
negotiation proceeded when the government of Malaysia interceded. Formal peace talks resumed and
MILF suspended all its military actions. The Tripoli Agreement in 2001 lead to the ceasefire between the
parties. After the death of MILF Chairman Hashim and Iqbal took over his position, the crafting of MOAAD in its final form was born.

MOA-AD Overview

This is an agreement to be signed by the GRP and the MILF. Used as reference in the birth of this MOAAD are the Tripoli Agreement, organic act of ARMM, IPRA Law, international laws such as ILO
Convention 169, the UN Charter etc., and the principle of Islam i.e compact right entrenchment (law of
compact, treaty and order). The body is divided into concepts and principles, territory, resources, and
governance.
Embodied in concepts and principles, is the definition of Bangsamoro as all indigenous peoples of
Mindanao and its adjacent islands. These people have the right to self- governance of their Bangsamoro
homeland to which they have exclusive ownership by virtue of their prior rights of occupation in the
land. The MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with defined
territory and with a system of government having entered into treaties of amity and commerce with
foreign nations." It then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.
As defined in the territory of the MOA-AD, the BJE shall embrace the Mindanao-Sulu-Palawan
geographic region, involving the present ARMM, parts of which are those which voted in the inclusion to
ARMM in a plebiscite. The territory is divided into two categories, A which will be subject to plebiscite
not later than 12 mos. after the signing and B which will be subject to plebiscite 25 years from the
signing of another separate agreement. Embodied in the MOA-AD that the BJE shall have jurisdiction
over the internal waters-15kms from the coastline of the BJE territory; they shall also have "territorial
waters," which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the
Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial
waters, the BJE and the government shall exercise joint jurisdiction, authority and management over all
natural resources. There will also be sharing of minerals in the territorial waters; but no provision on the
internal waters.
Included in the resources is the stipulation that the BJE is free to enter into any economic cooperation
and trade relations with foreign countries and shall have the option to establish trade missions in those
countries, as well as environmental cooperation agreements, but not to include aggression in the GRP.
The external defense of the BJE is to remain the duty and obligation of the government. The BJE shall
have participation in international meetings and events" like those of the ASEAN and the specialized
agencies of the UN. They are to be entitled to participate in Philippine official missions and delegations
for the negotiation of border agreements or protocols for environmental protection and equitable

sharing of incomes and revenues involving the bodies of water adjacent to or between the islands
forming part of the ancestral domain. The BJE shall also have the right to explore its resources and that
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. And they shall have the right to cancel or modify concessions
and TLAs.
And lastly in the governance, the MOA-AD claims that the relationship between the GRP and MILF is
associative i.e. characterized by shared authority and responsibility. This structure of governance shall
be further discussed in the Comprehensive Compact, a stipulation which was highly contested before
the court. The BJE shall also be given the right to build, develop and maintain its own institutions, the
details of which shall be discussed in the comprehensive compact as well.
Issues:
1. WON the petitions have complied with the procedural requirements for the exercise of judicial review
2. WON respondents violate constitutional and statutory provisions on public consultation and the right
to information when they negotiated and later initialed the MOA-AD; and
3. WON the contents of the MOA-AD violated the Constitution and the laws
Ruling:
The SC declared the MOA-AD contrary to law and the Constitution.

On the Procedural Issue

1st issue: As regards the procedural issue, SC upheld that there is indeed a need for the exercise of
judicial review.
The power of judicial review is limited to actual cases or controversy, that is the court will decline on
issues that are hypothetical, feigned problems or mere academic questions. Related to the requirement
of an actual case or controversy is the requirement of ripeness. The contention of the SolGen is that
there is no issue ripe for adjudication since the MOA-AD is only a proposal and does not automatically
create legally demandable rights and obligations. Such was denied.
The SC emphasized that the petitions are alleging acts made in violation of their duty or in grave abuse
of discretion. Well-settled jurisprudence states that acts made by authority which exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes,
the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. This is aside from the fact that concrete acts made under the MOA-AD are not

necessary to render the present controversy ripe and that the law or act in question as not yet effective
does not negate ripeness.
With regards to the locus standi, the court upheld the personalities of the Province of Cotabato,
Province of Zamboanga del norte, City of Iligan, City of Zamboanga, petitioners in intervention Province
of Sultan Kudarat, City of Isabela and Municipality of Linnamon to have locus standi since it is their LGUs
which will be affected in whole or in part if include within the BJE. Intervenors Franklin Drilon and Adel
Tamano, in alleging their standing as taxpayers, assert that government funds would be expended for
the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score
alone, they can be given legal standing. Senator Mar Roxas is also given a standing as an intervenor. And
lastly, the Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an
advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim
Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers since they stand to
be benefited or prejudiced in the resolution of the petitions regarding the MOA-AD.
On the contention of mootness of the issue considering the signing of the MOA-AD has already been
suspended and that the President has already disbanded the GRP, the SC disagrees. The court reiterates
that the moot and academic principle is a general rule only, the exceptions, provided in David v.
Macapagal-Arroyo, that it will decide cases, otherwise moot and academic, if it finds that (a) there is a
grave violation of the Constitution; (b) the situation is of exceptional character and paramount public
interest is involved; (c) the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and (d) the case is capable of repetition yet evading review;
and that where there is a voluntary cessation of the activity complained of by the defendant or doer, it
does not divest the court the power to hear and try the case especially when the plaintiff is seeking for
damages or injunctive relief.
Clearly, the suspension of the signing of the MOA-AD and the disbandment of the GRP did not render
the petitions moot and academic. The MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the Court to formulate controlling
principles to guide the bench, the bar, the public and, in this case, the government and its negotiating
entity.
At all events, the Court has jurisdiction over most if not the rest of the petitions. There is a reasonable
expectation that petitioners will again be subjected to the same problem in the future as respondents'
actions are capable of repetition, in another or any form. But with respect to the prayer of Mandamus to
the signing of the MOA-AD, such has become moot and academic considering that parties have already
complied thereat.

On the Substantive Issue

2nd Issue: The SC ruled that the MOA-AD is a matter 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.
As enshrined in the Constitution, the right to information guarantees the right of the people to demand
information, and integrated therein is the recognition of the duty of the 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.
Also, it was held that such stipulation in the Constitution is self-executory with reasonable safeguards
the effectivity of which need not await the passing of a statute. Hence, it is essential 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.
The idea of a feedback mechanism was also sought for since it is corollary to the twin rights to
information and disclosure. And feedback means not only the conduct of the plebiscite as per the
contention of the respondents. Clearly, what the law states is the right of the petitioners to be consulted
in the peace agenda as corollary to the constitutional right to information and disclosure. As such,
respondent Esperon committed grave abuse of discretion for failing to carry out 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 thereto. Moreover, he
cannot invoke of executive privilege because he already waived it when he complied with the Courts
order to the unqualified disclosure of the official copies of the final draft of the MOA-AD.
In addition, the LGU petitioners has the right to be involved in matters related to such peace talks as
enshrined in the State policy. 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.
With respect to the ICC/IPPs they also have the right to participate fully at all levels on decisions that
would clearly affect their lives, rights and destinies. The MOA-AD is an instrument recognizing ancestral
domain, hence it should have observed the free and prior informed consent to the ICC/IPPs; but it failed
to do so. More specially noted by the court is the excess in authority exercised by the respondentsince
they allowed delineation and recognition of ancestral domain claim by mere agreement and
compromise; such power cannot be found in IPRA or in any law to the effect.
3rd issue: With regard to the provisions of the MOA-AD, there can be no question that they cannot be
all accommodated under the present Constitution and laws. Not only its specific provisions but the very
concept underlying them:

On matters of the Constitution.

Association as the type of relationship governing between the parties. The parties manifested that in
crafting the MOA-AD, the term association was adapted from the international law. In international law,
association happens when two states of equal power voluntarily establish durable links i.e. the one
state, the associate, delegates certain responsibilities to the other, principal, while maintaining its
international status as state; free association is a middle ground between integration and independence.
The MOA-AD contains many provisions that are consistent with the international definition of
association which fairly would deduced that the agreement vest into the BJE a status of an associated
state, or at any rate, a status closely approximating it. The court vehemently objects because the
principle of association is not recognized under the present Constitution.

On the recognition of the BJE entity as a state. The concept implies power beyond what the
Constitution can grant to a local government; even the ARMM do not have such recognition;
and the fact is such concept implies recognition of the associated entity as a state. There is
nothing in the law that contemplate any state within the 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 court disagrees with the respondent that the MOAAD merely expands the ARMM. 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. As such the MOA-AD
clearly runs counter to the national sovereignty and territorial integrity of the Republic.

On the expansion of the territory of the BJE. The territory included in the BJE includes those
areas who voted in the plebiscite for them to become part of the ARMM. The stipulation of the
respondents in the MOA-AD that these areas need not participate in the plebiscite is in contrary
to the express provision of the Constitution. The law states that 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." Clearly, assuming that the BJE is just an expansion of the ARMM, it would still run afoul
the wordings of the law since those included in its territory are areas which voted in its inclusion
to the ARMM and not to the BJE.

On the powers vested in the BJE as an entity. The respondents contend that the powers vested
to the BJE in the MOA-AD shall be within sub-paragraph 9 of sec 20, art. 10 of the constitution
and that a mere passage of a law is necessary in order to vest in the BJE powers included in the
agreement. The Court was not persuaded. SC ruled that such conferment calls for amendment
of the Constitution; otherwise new legislation will not concur with the Constitution. Take for
instance the treaty making power vested to the BJE in the MOA-AD. The Constitution is clear
that only the President has the sole organ and is the countrys sole representative with foreign

nation. Should the BJE be granted with the authority to negotiate with other states, the former
provision must be amended consequently. Section 22 must also be amendedthe provision of
the law that promotes national unity and development. Because clearly, associative
arrangement of the MOA-AD does not epitomize national unity but rather, of semblance of
unity. 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.

On matters of domestic statutes.

o Provisions contrary to the organic act of ARMM. RA 9054 is a bar to the adoption of the definition of
Bangsamoro people used in the MOA-AD. Said law specifically distinguishes between the Bangsamoro
people and the Tribal peoples that is contrary with the definition of the MOA-AD which includes all
indigenous people of Mindanao.
o Provisions contrary to the IPRA law. Also, the delineation and recognition of the ancestral domain is a
clear departure from the procedure embodied in the IPRA law which ironically is the term of reference
of the MOA-AD.

On matters of international law.

The Philippines adopts the generally accepted principle of international law as part of the law of the
land. In international law, the right to self-determination has long been recognized which states that
people can freely determine their political status and freely pursue their economic, social, and cultural
development. There are the internal and external self-determinationinternal, meaning the self-pursuit
of man and the external which takes the form of the assertion of the right to unilateral secession. This
principle of self-determination is viewed with respect accorded to the territorial integrity of existing
states. External self-determination is only afforded in exceptional cases when there is an actual block in
the meaningful exercise of the right to internal self-determination. International law, as a general rule,
subject only to limited and exceptional cases, recognizes that the right of disposing national territory is
essentially an attribute of the sovereignty of every state.
On matters relative to indigenous people, international law states that indigenous peoples situated
within states do not have a general right to independence or secession from those states under
international law, but they do have rights amounting to what was discussed above as the right to
internal self-determination; have the right to autonomy or self-government in matters relating to their
internal and local affairs, as well as ways and means for financing their autonomous functions; have the
right to the lands, territories and resources which they have traditionally owned, occupied or otherwise
used or acquired.
Clearly, there is nothing in the law that required the State to guarantee the indigenous people their own

police and security force; but rather, it shall be the State, through police officers, that will provide for
the protection of the people. With regards to the autonomy of the indigenous people, the law does not
obligate States to grant indigenous peoples the near-independent status of a state; since it would impair
the territorial integrity or political unity of sovereign and independent states.

On the basis of the suspensive clause.

o It was contented by the respondents that grave abuse of discretion cannot be had, since the
provisions assailed as unconstitutional shall not take effect until the necessary changes to the legal
framework are effected.
The Court is not persuaded. This suspensive clause runs contrary to Memorandum of Instructions from
the President stating that negotiations shall be conducted in accordance to the territorial integrity of the
countrysuch was negated by the provision on association incorporated in the MOA-AD. Apart from
this, the suspensive clause was also held invalid because of the delegated power to the GRP Peace panel
to advance peace talks even if it will require new legislation or even constitutional amendments. The
legality of the suspensive clause hence hinges on the query whether the President can exercise such
power as delegated by EO No.3 to the GRP Peace Panel. Well settled is the rule that the President
cannot delegate a power that she herself does not possess. The power of the President to conduct
peace negotiations is not explicitly mentioned in the Constitution but is rather implied from her powers
as Chief Executive and Commander-in-chief. As Chief Executive, the President has the general
responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to
prevent and suppress rebellion and lawless violence.
As such, the President is given the leeway to explore, in the course of peace negotiations, solutions that
may require changes to the Constitution for their implementation. At all event, the president may not,
of course, unilaterally implement the solutions that she considers viable; but she may not be prevented
from submitting them as recommendations to Congress, which could then, if it is minded, act upon
them pursuant to the legal procedures for constitutional amendment and revision.
While the President does not possess constituent powers - as those powers may be exercised only by
Congress, a Constitutional Convention, or the people through initiative and referendum - she may
submit proposals for constitutional change to Congress in a manner that does not involve the arrogation
of constituent powers. Clearly, the principle may be inferred that the President - in the course of
conducting peace negotiations - may validly consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally implement them without the intervention of
Congress, or act in any way as if the assent of that body were assumed as a certainty. The Presidents
power is limited only to the preservation and defense of the Constitution but not changing the same but
simply recommending proposed amendments or revisions.
o The Court ruled that the suspensive clause is not a suspensive condition but is a term because it is
not a question of whether the necessary changes to the legal framework will take effect; but, when.
Hence, the stipulation is mandatory for the GRP to effect the changes to the legal framework which

changes would include constitutional amendments. Simply put, the suspensive clause is inconsistent
with the limits of the President's authority to propose constitutional amendments, it being a virtual
guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted
to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down as
unconstitutional.

On the concept underlying the MOA-AD.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding
on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally defective. The MOA-AD not being a
document that can bind the Philippines under international law notwithstanding, respondents' almost
consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to
constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a
solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to
guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution.
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.