GRECO BELGICA VS EXECUTIVE SECRETARY PAQUITO OCHOA
I. Whether or not the congressional pork barrel system is constitutional.
FACTS:
The petitioner Greco Belgica and several others, filed various petitions before the
Supreme Court questioning the constitutionality of the pork barrel system
The so-called pork barrel system has been around in the Philippines since about 1922.
Pork Barrel is commonly known as the lump-sum, discretionary funds of the members
of the Congress. It underwent several legal designations from “Congressional Pork
Barrel” to the latest “Priority Development Assistance Fund” or PDAF. The allocation
for the pork barrel is integrated in the annual General Appropriations Act (GAA).
Since 2011, the allocation of the PDAF has been done in the following manner:
a. P70 million: for each member of the lower house; broken down to – P40 million for
“hard projects” (infrastructure projects like roads, buildings, schools, etc.), and P30
million for “soft projects” (scholarship grants, medical assistance, livelihood programs,
IT development, etc.);
b. P200 million: for each senator; broken down to – P100 million for hard projects,
P100 million for soft projects;
c. P200 million: for the Vice-President; broken down to – P100 million for hard
projects, P100 million for soft projects.
The PDAF articles in the GAA do provide for realignment of funds whereby certain
cabinet members may request for the realignment of funds into their department
provided that the request for realignment is approved or concurred by the legislator
concerned.
Presidential Pork Barrel
The president does have his own source of fund albeit not included in the GAA. The so-
called presidential pork barrel comes from two sources: (a) the Malampaya Funds,
from the Malampaya Gas Project – this has been around since 1976, and (b) the
Presidential Social Fund which is derived from the earnings of PAGCOR – this has been
around since about 1983.
Pork Barrel Scam Controversy
Ever since, the pork barrel system has been besieged by allegations of corruption. In
July 2013, six whistle blowers, headed by Benhur Luy, exposed that for the last decade,
the corruption in the pork barrel system had been facilitated by Janet Lim Napoles.
Napoles had been helping lawmakers in funneling their pork barrel funds into about 20
bogus NGO’s (non-government organizations) which would make it appear that
government funds are being used in legit existing projects but are in fact going to
“ghost” projects. An audit was then conducted by the Commission on Audit and the
results thereof concurred with the exposes of Luy et al.
ISSUES:
II. Whether or not presidential pork barrel system is constitutional.
HELD:
I. No, the congressional pork barrel system is unconstitutional. It is unconstitutional
because it violates the following principles:
a. Separation of Powers
As a rule, the budgeting power lies in Congress. It regulates the release of funds (power
of the purse). The executive, on the other hand, implements the laws – this includes
the GAA to which the PDAF is a part of. Only the executive may implement the law but
under the pork barrel system, what’s happening was that, after the GAA, itself a law,
was enacted, the legislators themselves dictate as to which projects their PDAF funds
should be allocated to – a clear act of implementing the law they enacted – a violation
of the principle of separation of powers. (Note in the older case of PHILCONSA vs
Enriquez, it was ruled that pork barrel, then called as CDF or the Countrywide
Development Fund, was constitutional insofar as the legislators only recommend where
their pork barrel funds go).
This is also highlighted by the fact that in realigning the PDAF, the executive will still
have to get the concurrence of the legislator concerned.
b. Non-delegability of Legislative Power
As a rule, the Constitution vests legislative power in Congress alone. (The Constitution
does grant the people legislative power but only insofar as the processes of referendum
and initiative are concerned). That being, legislative power cannot be delegated by
Congress for it cannot delegate further that which was delegated to it by the
Constitution.
Exceptions to the rule are:
(i) delegated legislative power to local government units but this shall involve purely
local matters;
(ii) authority of the President to, by law, exercise powers necessary and proper to carry
out a declared national policy in times of war or other national emergency, or fix within
specified limits, and subject to such limitations and restrictions as Congress may
impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the national development program of the
Government.
In this case, the PDAF articles which allow the individual legislator to identify the
projects to which his PDAF money should go to is a violation of the rule on non-
delegability of legislative power. The power to appropriate funds is solely lodged in
Congress (in the two houses comprising it) collectively and not lodged in the individual
members. Further, nowhere in the exceptions does it state that the Congress can
delegate the power to the individual member of Congress.
c. Principle of Checks and Balances These are sufficient laws which met the requirement of Section 29, Article VI of the
Constitution. The appropriation contemplated therein does not have to be a particular
One feature in the principle of checks and balances is the power of the president to
appropriation as it can be a general appropriation as in the case of PD 910 and PD
veto items in the GAA which he may deem to be inappropriate. But this power is already
1869.
being undermined because of the fact that once the GAA is approved, the legislator can
now identify the project to which he will appropriate his PDAF. Under such system, how
can the president veto the appropriation made by the legislator if the appropriation is
made after the approval of the GAA – again, “Congress cannot choose a mode of
budgeting which effectively renders the constitutionally-given power of the President
useless.”
d. Local Autonomy
As a rule, the local governments have the power to manage their local affairs. Through
their Local Development Councils (LDCs), the LGUs can develop their own programs
and policies concerning their localities. But with the PDAF, particularly on the part of
the members of the house of representatives, what’s happening is that a congressman
can either bypass or duplicate a project by the LDC and later on claim it as his own.
This is an instance where the national government (note, a congressman is a national
officer) meddles with the affairs of the local government – and this is contrary to the
State policy embodied in the Constitution on local autonomy. It’s good if that’s all that
is happening under the pork barrel system but worse, the PDAF becomes more of a
personal fund on the part of legislators.
II. Yes, the presidential pork barrel is valid.
The main issue raised by Belgica et al against the presidential pork barrel is that it is
unconstitutional because it violates Section 29 (1), Article VI of the Constitution which
provides:

No money shall be paid out of the Treasury except in pursuance of

an appropriation made by law.

Belgica et al emphasized that the presidential pork comes from the earnings of the
Malampaya and PAGCOR and not from any appropriation from a particular legislation.

The Supreme Court disagrees as it ruled that PD 910, which created the Malampaya
Fund, as well as PD 1869 (as amended by PD 1993), which amended PAGCOR’s charter,
provided for the appropriation, to wit:
(i) PD 910: Section 8 thereof provides that all fees, among others, collected from certain
energy-related ventures shall form part of a special fund (the Malampaya Fund) which
shall be used to further finance energy resource development and for other purposes
which the President may direct;
(ii) PD 1869, as amended: Section 12 thereof provides that a part of PAGCOR’s earnings
shall be allocated to a General Fund (the Presidential Social Fund) which shall be used
in government infrastructure projects.
ABBAS VS. COMELEC, 179 SCRA 287 (1989)
FACTS:
The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9)
cities in Mindanao and Palawan in implementation of Republic Act No. 6734, entitled
"An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao.
Petitioners allege that (a) that R.A. 6734, or parts thereof, violates the Constitution.
He argues that R.A. No. 6734 unconditionally creates an autonomous region in
Mindanao, contrary to the aforequoted provisions of the Constitution on the
autonomous region which make the creation of such region dependent upon the
outcome of the plebiscite.
In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734
which declares that "there is hereby created the Autonomous Region in Muslim
Mindanao, to be composed of provinces and cities voting favorably in the plebiscite
called for the purpose, in accordance with Section 18, Article X of the Constitution."
Petitioner contends that the tenor of the above provision makes the creation of an
autonomous region absolute, such that even if only two provinces vote in favor of
autonomy, an autonomous region would still be created composed of the two provinces
where the favorable votes were obtained.
ISSUE:
Whether or not RA 6734 is unconstitutional.
RULING:
No, RA 6734 is not violative of the Constitution. The Transitionary Provisions of the
Organic Act provides “that only the provinces and cities voting favorably in such
plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The
provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous
Region shall remain the existing administrative determination, merge the existing
regions.”
Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region
shall take effect only when approved by a majority of the votes cast by the constituent
units in a plebiscite, and only those provinces and cities where a majority vote in favor
of the Organic Act shall be included in the autonomous region. The provinces and cities
wherein such a majority is not attained shall not be included in the autonomous region.
It may be that even if an autonomous region is created, not all of the thirteen (13)
provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall
be included therein.
It will readily be seen that the creation of the autonomous region is made to depend,
not on the total majority vote in the plebiscite, but on the will of the majority in each
of the constituent units and the proviso underscores this; for if the intention of the
framers of the Constitution was to get the majority of the totality of the votes cast,
they could have simply adopted the same phraseology as that used for the ratification
of the Constitution, i.e. "the creation of the autonomous region shall be effective when
approved by a majority of the votes cast in a plebiscite called for the purpose."
It is thus clear that what is required by the Constitution is a simple majority of votes
approving the organic Act in individual constituent units and not a double majority of
the votes in all constituent units put together, as well as in the individual constituent
units.
CHIONGBIAN VS. ORBOS, 245 SCRA 253 (1995)
FACTS:
Under Article 19 Section 13 of RA No. 6734, the President was granted the authority to
"merge" by administrative determination the regions remaining after the establishment
of the Autonomous Region. Consistent with this, President Corazon Aquino issued E.O
No. 429 providing for the Reorganization of the Administrative Regions in Mindanao.
Petitioners contend that said provision is unconstitutional because (1) it unduly
delegates legislative power to the President by authorizing him to merge by
administrative determination the existing regions; (2) at any rate provides no standard
for the exercise of the power delegated and that the power granted is not expressed in
the title of the law; (3) also challenges the validity of the said provision because the
power granted was only to "merge regions IX and XII" but not to reorganize the entire
administrative regions in Mindanao.
They said that while the authority necessarily includes the authority to merge, the
authority to merge does not include the authority to reorganize. Therefore, the
President's authority under RA 6734 to "merge existing regions" cannot be construed
to include the authority to reorganize them. To do so will violate the rules of statutory
construction.
ISSUE:
1) Whether the power to "merge" administrative regions is legislative in character
2) Whether the power given is fairly expressed in the title of the statute
3) Whether the power granted authorizes the reorganization even of regions the
provinces and cities in which either did not take part in the plebiscite on the
creation of the Autonomous Region or did not vote in favor of it
RULING:

1) YES. There is no abdication by Congress of its legislative power in conferring on
the President the power to merge administrative regions. Thus the creation and
subsequent reorganization of administrative regions have been by the President
pursuant to authority granted to him by law. In conferring on the President the
power "to merge [by administrative determination] the existing regions"
following the establishment of the Autonomous Region in Muslim Mindanao,
Congress merely followed the pattern set in previous legislation dating back to
the initial organization of administrative regions in 1972. (R.A. No. 5435 was
passed "authorizing the President of the Philippines, with the help of a
Commission on Reorganization to reorganize the different executive
departments, bureaus, offices, agencies and instrumentalities of the
government, including banking or financial institutions and corporations owned
or controlled by it.)
2) YES. It is a sufficient compliance with the constitutional requirement if the title
expresses the general subject and all provisions of the statute are germane to
that subject. Certainly the reorganization of the remaining administrative
regions is germane to the general subject of R.A. No. 6734, which is the
establishment of the Autonomous Region in Muslim Mindanao
3) YES. While Art. XIX, §13 provides that "The provinces and cities which do not
vote for inclusion in the Autonomous Region shall remain in the existing
administrative regions," this provision is subject to the qualification that "the
President may by
4) Administrative determination merge the existing regions." This means that
while non-assenting provinces and cities are to remain in the regions as
designated upon the creation of the Autonomous Region, they may nevertheless
be regrouped with contiguous provinces forming other regions as the exigency
of administration may require.
CORDILLERA BROAD COALITION VS. COA, 181 SCRA 495 (1990)
FACTS:
The constitutionality of E.O No. 220 which created the Cordillera Administrative Region,
is assailed on the primary ground that it pre-empts the enactment of an organic act by
the Congress and the creation of' the autonomous region in the Cordilleras conditional
on the approval of the act through a plebiscite.
Explaining the rationale for the issuance of E.O. No. 220, its last "Whereas" clause
provides:
WHEREAS, pending the convening of the first Congress and the enactment of the
organic act for a Cordillera autonomous region, there is an urgent need, in the interest
of national security and public order, for the President to reorganize immediately the
existing administrative structure in the Cordilleras to suit it to the existing political
realities therein and the Government's legitimate concerns in the areas, without
attempting to pre-empt the constitutional duty of the first Congress to undertake the
creation of an autonomous region on a permanent basis.
In these cases, petitioners principally argue that by issuing E.O. No. 220 the President,
in the exercise of her legislative powers prior to the convening of the first Congress
under the 1987 Constitution, has virtually pre-empted Congress from its mandated task
of enacting an organic act and created an autonomous region in the Cordilleras.
The Constitution outlines a complex procedure for the creation of an autonomous region
in the Cordilleras. Undoubtedly, all of these will take time. The President, in 1987 still
exercising legislative powers, as the first Congress had not yet convened, saw it fit to
provide for some measures to address the urgent needs of the Cordilleras in the
meantime that the organic act had not yet been passed and the autonomous region
created. These measures we find in E.O. No. 220.
E.O. No. 220 did not establish an autonomous regional government. It created a region,
covering a specified area, for administrative purposes with the main objective of
coordinating the planning and implementation of programs and services [secs. 2 and
5]. To determine policy, it created a representative assembly, to convene yearly only
for a five-day regular session, tasked with, among others, identifying priority projects
and development programs [sec. 9]. To serve as an implementing body, it created the
Cordillera Executive Board composed of the Mayor of Baguio City, provincial governors
and representatives of the Cordillera Bodong Administration, ethno-linguistic groups
and non-governmental organizations as regular members and all regional directors of
the line departments of the National Government as ex-officio members and headed by
an Executive Director [secs. 10 and 11]. The bodies created by E.O. No. 220 do not
supplant the existing local governmental structure, nor are they autonomous
government agencies. They merely constitute the mechanism for an "umbrella" that
brings together the existing local governments, the agencies of the National
Government, the ethno-linguistic groups or tribes, and non-governmental organizations
in a concerted effort to spur development in the Cordilleras.
DENR vs. DENR Region 12 Employees, August 19, 2003
FACTS:
Regional Executive Director of the DENR for Region XII, Israel C. Gaddi, issued a
Memorandum[3] directing the immediate transfer of the DENR XII Regional Offices from
Cotabato City to Koronadal, South Cotabato.
Respondents, employees of the DENR Region XII who are members of the employees
association, COURAGE, filed with the RTC of Cotabato, a petition for nullity of orders
with prayer for preliminary injunction.
The RTC granted the cease and desist order.
Petitioner maintains that the assailed DAO-99-14 and the implementing memorandum
were valid and that the trial court should have taken judicial notice of Republic Act No.
6734, otherwise known as An Organic Act for the Autonomous Region in Muslim
Mindanao, and its implementing Executive Order 429, as the legal bases for the
issuance of the assailed DAO-99-14. Moreover, the validity of R.A. No. 6734 and E.O.
429 were upheld in the case of Chiongbian v. Orbos.
In Chiongbian v. Orbos, this Court stressed the rule that the power of the President to
reorganize the administrative regions carries with it the power to determine the regional
centers. In identifying the regional centers, the President purposely intended the
effective delivery of the field services of government agencies.[23] The same intention
can be gleaned from the preamble of the assailed DAO-99-14 which the DENR sought
to achieve, that is, to improve the efficiency and effectiveness of the DENR in delivering
its services.
Thus, the respondents cannot, by means of an injunction, force the DENR XII Regional
Offices to remain in Cotabato City, as the exercise of the authority to transfer the same
is executive in nature
ISSUE:
Whether the DENR Secretary has the authority to reorganize the DENR.
RULING:
YES. The DENR Secretary has the authority. The court reiterated the elementary
doctrine of qualified political agency, thus:
Under this doctrine, which recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of the Executive Department,
the heads of the various executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of the situation demand that he
act personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of
the Secretaries of such departments, performed and promulgated in the regular course
of business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive.
Applying the doctrine of qualified political agency, the power of the President to
reorganize the National Government may validly be delegated to his cabinet members
exercising control over a particular executive department.
Similarly, in the case at bar, the DENR Secretary can validly reorganize the DENR by
ordering the transfer of the DENR XII Regional Offices from Cotabato City to Koronadal,
South Cotabato. The exercise of this authority by the DENR Secretary, as an alter ego,
is presumed to be the acts of the President for the latter had not expressly repudiated
the same.
ORDILLO VS. COMELEC, 192 SCRA 100 (1990)
Facts:
On January 30, 1990, the people of the provinces of Benguet, Mountain Province,
Ifugao, Abra and Kalinga-Apayao and the city of Baguio cast their votes in a plebiscite
held pursuant to Republic Act No. 6766 entitled “An Act Providing for an Organic Act
for the Cordillera Autonomous Region.” The official Commission on Elections
(COMELEC) results of the plebiscite showed that the creation of the Region was
approved by a majority of 5,889 votes in only the Ifugao Province and was
overwhelmingly rejected by 148,676 votes in the rest of the provinces and city above-
mentioned.
Consequently, the COMELEC, on February 14, 1990, issued Resolution No. 2259 stating
that the Organic Act for the Region has been approved and/or ratified by majority of
the votes cast only in the province of Ifugao. the petitioner filed a petition with
COMELEC to declare the non-ratification of the Organic Act for the Region. The
petitioners maintain that there can be no valid Cordillera Autonomous Region in only
one province as the Constitution and Republic Act No. 6766 require that the said Region
be composed of more than one constituent unit.
Issue:
Whether or not the province of Ifugao, being the only province which voted favorably
for the creation of the Cordillera Autonomous Region can, alone, legally and validly
constitute such Region.
Ruling:
The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region.
It is explicit in Article X, Section 15 of the 1987 Constitution. The keywords —
provinces, cities, municipalities and geographical areas connote that “region” is to be
made up of more than one constituent unit. The term “region” used in its ordinary sense
means two or more provinces. This is supported by the fact that the thirteen (13) brought about by changes in population and mandated by the constitutional
regions into which the Philippines is divided for administrative purposes are groupings requirement of equality of representation.
of contiguous provinces. Ifugao is a province by itself. To become part of a region, it
Before, Cagayan de Oro had only one congressman and 12 city council members
must join other provinces, cities, municipalities, and geographical areas. It joins other
citywide for its population of approximately 500,000. By having two legislative districts,
units because of their common and distinctive historical and cultural heritage, economic
each of them with one congressman, Cagayan de Oro now effectively has two
and social structures and other relevant characteristics. The Constitutional
congressmen, each one representing 250,000 of the city’s population. This easily
requirements are not present in this case.
means better access to their congressman since each one now services only 250,000
constituents as against the 500,000.
Article III, Sections 1 and 2 of Republic Act No. 6766 provide that the Cordillera
Autonomous Region is to be administered by the Cordillera government consisting of
the Regional Government and local government units. It further provides that:
THE PROVINCE OF NORTH COTABATO VS. THE GRP PEACE PANEL ON
“SECTION 2. The Regional Government shall exercise powers and functions necessary
for the proper governance and development of all provinces, cities, municipalities, and ANCESTRAL DOMAIN, 568 SCRA 402 (2008)
barangay or areas within the Autonomous Region . . .”
FACTS:
From these sections, it can be gleaned that Congress never intended that a single
province may constitute the autonomous region. Otherwise, we would be faced with
President Gloria Macapagal-Arroyo, in line with the government‘s policy of pursuing
the absurd situation of having two sets of officials, a set of provincial officials and
peace negotiations with the Moro Islamic Liberation Front (MILF), asked Prime Minister
another set of regional officials exercising their executive and legislative powers over
Mahathir Mohammad to convince the MILF to continue negotiating with the
exactly the same small area.
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
Cagayan de Oro used to have only one legislative district. But in 2006, CdO
(Tripoli Agreement 2001) which consists of three (3) aspects: a.) security aspect; b.)
Congressman Constantino Jaraula sponsored a bill to have two legislative districts in
rehabilitation aspect; and c.) ancestral domain aspect. Various negotiations were held
CdO instead. The law was passed (RA 9371) hence two legislative districts were
which led to the finalization of the Memorandum of Agreement on the Ancestral Domain
created. Rogelio Bagabuyo assailed the validity of the said law and he went immediately
(MOA-AD). The said memorandum was set to be signed last August 5, 2008. In its
to the Supreme Court to enjoin the COMELEC from enforcing the law in the upcoming
body, it grants ―the authority and jurisdiction over the Ancestral Domain
elections. Bagabuyo was contending that the 2nd district was created without a
and Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The
plebiscite which he averred was required by the Constitution.
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
ISSUE: Whether or not a plebiscite was required in the case at bar.
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,
RULING: embracing the Mindanao-Sulu-Palawan geographic region. With regard to governance,
No, a plebiscite is not required in the case at bar. RA 9371 merely increased the on the other hand, a shared responsibility and authority between the Central
representation of Cagayan de Oro City in the House of Representatives and Government and BJE was provided. The relationship was described as ―associative.
Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution; With the formulation of the MOA-AD, petitioners aver that the negotiation and
the criteria established under Section 10, Article X of the 1987 Constitution only apply finalization of the MOA-AD violates constitutional and statutory provisions on public
when there is a creation, division, merger, abolition or substantial alteration of consultation, as mandated by Executive Order No. 3, and right to information. They
boundaries of a province, city, municipality, or barangay; in this case, no such creation, further contend that it violates the Constitution and laws. Hence, the filing of the
division, merger, abolition or alteration of boundaries of a local government unit took petition.
place; and R.A. No. 9371 did not bring about any change in Cagayan de Oro’s territory,
population and income classification; hence, no plebiscite is required. What happened
here was a reapportionment of a single legislative district into two legislative
districts. Reapportionment is the realignment or change in legislative districts
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 advice 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.