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

-vs-

Ermita 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
MOA-AD 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 MOA-AD
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 MOA-AD 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 MOA-AD 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-determination
internal, 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.