PROVINCE OF NORTH COTABATO v.

GRP
G.R. No. 183591 etc Oct 14, 2008 Carpio-Morales Enad
petitioners Province of North Cotabato|City Govt of Zamboanga, etc|City of Iligan|Provincial Gov’t of
Zamboanga Del Norte, etc|Ernesto Maceda,Jejomar Binay, Aquilino Pimentel III
responden Govt of the Rep of the Phils Peace Panel on Ancestral Domain and Presidential Adviser on Peace
ts Process (PAPP) Gen. Hermogenes Esperon Jr.
summary Summary of facts and ratio. Doctrine. Relationship to syllabus topic.

facts of the case

1996: the GRP-MILF negotiations began.
1997: signed Agreement on General Cessation of Hostilities.
1998: signed General Framework of Agreement of Intent.
However, towards the end of 1999, the MILF attacked municipalities in Central Mindanao, prompting the declaration of “all-out-
war” against the MILF by then Pres Estrada. The military offensive against the MILF was suspended when Pres Arroyo assumed office
and sought the intervention of Malaysia’s Prime Minister to convince MILF to return to the negotiating table. MILF agreed and decided
to meet with The Government of the Republic of the Philippines (GRP). The parties met in KL on March 24, 2001, with the talks being
facilitated by the Malaysian Gov’t. They signed on the same date the Agreement on the General Framework for the Resumption of
Peace Talks Bet. the GRP and the MILF.
Formal peace talks between the parties were held in Tripoli, Libya on June 2001 which led to the GRP-
MILF Tripoli Agreement on Peace containing the basic principles and agenda on the following aspects of
negotiation: (1) Security Aspect. (2) Rehabilitation Aspect, and (3) Ancestral Domain Aspect. On August 5,
2008, the GRP and the MILF, through their respective peace negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement
on Peace of 2001 in Kuala Lumpur, Malaysia. The petitioners filed their cases and, upon motion, the SC issued
a TRO on the signing of the MOA-AD1 enjoining the GRP from signing the same.

Prayers in the Petitions:

(1) North Cotabato: to compel respondents to disclose and furnish them the complete and official copies of
the MOA-AD with attachments; to prohibit the signing of the MOA-AD pending disclosure of its contents; to
enjoin the holding of a public consultation thereon; declaration of the MOA-AD as unconstitutional.
(2) Zamboanga City: that the city be excluded from the Bangsamoro Juridical Entity (BJE)
(Other petitions essentially pray for the same. Total of 5 petitions and 6 petitions in intervention)

Overview of the MOA-AD

 Parties: GRP & MILF.
 Terms of Reference (TOR) include:
o 4 earlier agreements bet the parties
o 2 agreements bet. GRP and MNLF – (1) 1976 Tripoli Agr & (2) Final Peace Agr on the
Implementation of the 1976 Tripoli Agr
o 2 local statutes: (1) Organic Act for ARMM (RA 6734) & (2) Indigenous Peoples Rights Act
(IPRA)
o Intl law instruments: ILO Convention 169 Concerning Indigenous & Tribal Peoples in
Independent Countries in reln to the UN Decl on the Rights of the Indigenous Peoples, the
UN Charter, etc.

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Significant contents of the MOA-AD, accdg to the Sol Gen:
1. Commitment of parties to pursue peace negotiations
2. Protect and respect human rights
3. Negotiation resolution and pacific settlement of the conflict
4. Refrain from using threat or force to attain undue advantage while peace negotiations on the substantive agenda are ongoing.

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 o Generic category: compact right entrenchment emanating from the regime of dar-ul-
mualhada (territory under compact) and dar-ul-harb (territory under peace agreement) that
partakes the nature of a treaty2 device. -> refers to all other agreements bet the MILF and the
GRP.

Main Body of MOA-AD divided into 4 strands: (1) Concepts & Principles, (2) Territory, (3)
Resources, and (4) Governance

A. Concepts and Principles

1. Starts with: It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as “Bangsamoros”
2. Bangsamoro People – natives or original inhabitants of Mindanao and its adjacent islands at the time
of conquest, and their descendants, including spouses
3. Bangsamoro Homeland – ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights of occupation. Both parties acknowledge that ancestral domain does not
form part of the public domain.
4. Right of self-governance of the Bangsamoro people is based on the past suzerain authority of the
sultanates
5. Describes the Bangsamoro People as the ‘First Nation’ with defined territory and with a sys of govt,
having entered into treaties of amity and commerce with foreign nations.
6. Bangsamoro Juridical Entity (BJE) – granted the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro.

B. Territory
1. The land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial
domain and atmospheric space above it embracing the Mindanao-Sulu-Palawan geographic region
a. Core of BJE – present geographic area of ARMM
b. Outside of this core, the other provinces, cities, municipalities are categorized into either Category
A and Category B, each subjected to plebiscite on different dates
Category A: plebiscite 12 months ff the signing of the MOA-AD.
Category B (Special Intervention Areas): plebiscite 25 yrs after the signing of a separate agr—the
Comprehensive Compact
2. BJE shall have jurisdiction over all natural resources within its internal waters
a. 15km from coastline of BJE area
3. BJE shall also have territorial waters – stretches beyond the internal waters up to the baselines of the
Republic
a. Within these territorial waters, BJE and the Republic exercise joint jurisdiction over all natural
resources (Note: no such joint jurisdiction for internal waters)
4. Sharing of minerals on territorial waters between the Central Gov and BJE, in favor of the latter.

C. Resources
1. 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
2. External defense of BJE remains with the Central Gov
3. Central Govt bound to take necessary steps to ensure BJE’s participation in intl mtgs and events like
ASEAN, and the UN.

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Defined as: any solemn agr in writing that sets out understandings, obligs, and benefits for both parties w/c provides for a
framework that elaborates the principles declared in the MOA-AD
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 4. BJE entitled to participate in Phil official missions & delegations for the negotiation of border agrs or
protocols for environmental protection & equitable sharing of incomes and revenues involving the
bodies of water adjacent to or bet. the islands forming part of the ancestral domain.
5. Sharing between the Central Gov and BJE of total production pertaining to natural resources is to be
75:25 in favor of the BJE
6. BJE may modify or cancel forest concessions, timber licenses, contract or agreements, mining
concessions, etc granted by the Phil Gov’t including those issued by the ARMM.

D. Governance
MOA-AD binds the Parties to invite a multinational third party to observe and monitor the
implementation of the Comprehensive Compact
a. This embodies the details for effective enforcement and actual implementation

“Associative” Relationship bet. the Central Gov’t and the BJE

 Shared authority and responsibility
 Structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact
 Provisions requiring amendments to the existing legal framework shall take effect upon
signing of the Comprehensive Compact and upon effecting aforesaid amendments with due
regard to the non-derogation of prior agrs and within the stipulated timeframe to be
contained in the Comprehensive Compact. (SUSPENSIVE CLAUSE)
 BJE granted the power to build, develop, and maintain its own institutions inclusive of civil
service, electoral, financial, and banking, education, legislation, economic, police, and internal
security force, judicial system, and correlational institutions—the details of w/c shall be
discussed in the negotiation of the comprehensive compact.

issue
WoN respondents violated consti & statutory provis on public consultation & the right to info when they
negotiated & later initialed the MOA-AD? YES.
WoN the contents MOA-AD are unconstitutional. YES.

ratio
PROCEDURAL ISSUES
Ripeness
Sol Gen: No justiciable controversy ripe for judicial review since the unsigned MOA-AD is smply a list of consensus
points subject to further negotiations and legislative enactments as well as constitutional processes. It is just a proposal
that does not automatically create legally demandable rights and obligs. There are no concrete acts that could possibly
violate their rights since the acts complained of are mere contemplated steps toward the formulation of a final peace
agreement.
SC: Concrete acts unnecessary to render the present controversy ripe. The petitions allege acts or omissions on the
part of respondent that exceed their authority by violating their duties under EO 3 and the Consti provis and other
statutes = prima facie case for Certiorari, Prohibition, Mandamus, and an actual case or controversy ripe for adjudication
exists. When an act of a branch of govt is seriously alleged to have infringed the Consti, it becomes not only the right but
the duty of the judiciary to settle the dispute.

Locus Standi
(Basically na-grant lahat kasi paramount public interest and transcendental importance, but just in case)

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Province of NC, ZdelN, Sultan Kudarat, City of Iligan, Zamboanga, Isabela, and Municipality of Linamon = all have locus
standi because of the direct and substantial injury that the LGUs will suffer since their territories are to be included in the
intended domain of the BJE. They allege that they did not vote for their inclusion in the ARMM.

Mootness
Respondents: petitions have been rendered moot with the satisfaction of all the reliefs prayed for by the petitioners
(copies of the draft were given to the petitioners) and the subsequent pronouncement of the Exec Sec that ‘no matter what
the SC ultimately decides, the govt will not sign the MOA.’ The Pres has also disbanded the GRP Peace Panel.
SC: The court will still decide a case otherwise moot and academic when: (1) there is a grave violation of the Consti, (2)
the situation is of exceptional character and paramount public interest is involved, (3) the consti issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public, and (4) the case is capable of repetition
yet evading review. The present petitions fall squarely within these exceptions:.
-The MOA-AD cannot be considered a mere list of consensus pts because: (1) of its nomenclature, (2) the need to have it
signed/initialed, and (3) the far-reaching Consti implications (creation of the BJE).
-Mootness will also not set in because the MOA-AD is part of a series of agreements necessary to carry out the terms of
the Tripoli Agreement 2001.
-A decision on the merits would formulate controlling principles to guide the bench, the bar, the public, and most
especially the govt in negotiating with the MILF regarding Ancestral Domain.
-Petitioner provinces have a reasonable expectation that they will again be subjected to the same problem in the future
as respondents’ action are capable of repetition.
However, the prayers for Mandamus have become moot since official copies of the final drafts were already given.

SUBSTANTIVE ISSUES
(1) Petitioners invoke their consti right to info on matters of public concern under Art. III Sec 7:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The parties agree that the MOA-AD is of public concern, as it involves sovereignty and territorial integrity of
the State.
Such right has been recognized as self-executory. Intended as a splendid symmetry to such right is the policy
of public disclosure under Art. II Sec. 28:

Sec. 28. 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.

The right to info guarantees the right of the people to demand info, while Sec. 28 recognizes the duty of officialdom to
give info even if nobody demands. The complete and effective exercise of the right to info necessitates that its
complementary provi on public disclosure derive the same self-executory nature. It would be absurd to say that the
broader right to info is already enforceable while the correlative duty of the State to disclose is not enforceable until there
is an enabling law.

…So anong connect sa MOA-AD? Corollary to the twin rights to info and disclosure is the design for
feedback mechanisms.
The mechanics for the duty to disclose info and to conduct public consultation regarding the peace agenda
and process is manifestly provided by EO 3 (defining the authority of the GRP Peace Panel). EO 3
contemplates not just the conduct of a plebiscite to effectuate continuing consultations, it establishes
petitioners’ right to be consulted on the peace agenda via the conduct of regular dialogues.

= PAPP Esperon in GAD for failing to carry out the pertinent consultations. The process by which the MOA-
AD was designed and crafted runs contrary to and in excess of his legal authority. But the ct cannot require the

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PAPP to conduct the consultation in a particular manner. It can only require him to comply with the law and
discharge the fxns within the authority given by the Pres.

Respondents: doctrine of executive privilege!

SC: EO has explicit provis on continuing consultation and dialogue on both national & local levels. In fact, it
recognizes the public’s right even BEFORE the GRP makes its official recommendations or before the govt
proffers its definite propositions.
This notwithstanding, respondents effectively waived the defense of executive privilege in view of their
unqualified disclosure of the official copies of the final draft of the MOA-AD.

LGC also provides as a state policy the requirement of periodic consultations by national agencies with LGUs,
NGOs and Pos before any project or program is implemented in their respective jurisdictions:

Sec. 27. Prior Consultations Required. – No project or program shall be implemented by government authorities unless
the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian
concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted
unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

The Ct has held before that among the programs covered by the state policy are those that are critical to the
environment and human ecology including those that may call for the eviction of a particular group of people
residing in the locality where this will be implemented = the MOA-AD unequivocally & unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively & drastically result to the
displacement of a great number of inhabitants from their environment.

The MOA-AD failed to justify its non-compliance with the clear-cut mechanism provided for in the IPRA
which entails the observance of free and prior informed consent of the ICCs/IPs. It does not grant the Exec
Dept the power to delineate and recognize ancestral domain by mere agreement or compromise. A sweeping
declaration on ancestral domain without complying with the IPRA which is cited as a TOR of the MOA-AD
shows that respondents clearly transcended the boundaries of their authority.

(2) MOA-AD is inconsistent with the Constitution and laws as presently worded.
Petitioners: Powers granted to the BJE exceed those granted to any LG under present law, and even go beyond
those of the present ARMM.

The SC first discussed the intl law concept of Association.

Under IL, an association is formed when 2 states of unequal power voluntarily establish duable links. One
state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its intl status
as a state. Free associations represent a middle ground bet. integration and independence. (Keitner & Reisman)
This has been used as a transitional device of former colonies on their way to full independence. In the MOA-
AD, many provis are consistent with this legal concept, specifically: #1, 3, & 4 under C. Resources. These
provis indicate that the parties aimed to vest in the BJE the status of an associated state, or a status closely
approximating it.

Concept of Association NOT recognized under the Consti

The concept implies powers that go beyond anything ever granted under the Consti. It also implies the
recognition of the associated entity as a state. But the Consti does not contemplate any state in this
jurisdiction other than the Phils.
The BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention
(permanent population, defined territory, govt, capacity to enter into relns with other states). Such concept

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runs counter to the national sovereignty and territorial integrity of the Republic, and is contrary to the
Constitution.

Even assuming that the BJE can fall under the term ‘autonomous region’ under the Consti, the MOA-AD
would still be in conflict with it because under the MOA certain municipalities are automatically part of the
BJE without need of another plebiscite.

MOA-AD would not comply with Art. X Sec. 20 of the Consti

The MOA would require an amendment that would expand this provi. Mere passage of new legislation will
not suffice, since any new law that might vest in the BJE the powers found in the MOA must also comply with
other consti provis. For example: Enacting a law granting the BJE treaty-making powers in order to
accommodate #1 under C. Resources would run counter to the provi in the consti stating that the only the Pres
has that treaty-making power. Art. II Sec. 22 must also be amended since an associative arrangement does not
uphold natl unity.

MOA-AD also inconsistent with Organic Act of ARMM and IPRA

Organic Act
Art. X Sec 3 of the OA distinguishes bet. Bangsamoro (believers in Islam) and Tribal peoples (citizens whose
social, cultural, and economic conditions distinguish them from other sectors), while the MOA-AD lumps
them all together.
IPRA
The IPRA lays down the prevailing procedure for the delineation & recognition of ancestral domains. The
MOA’s manner of delineating is a clear departure from that procedure.

Hence, the MOA contains numerous provis that cannot be reconciled with the Consti and the laws.

Respondents: But there is a suspensive clause! (Refer to bolded part in the associative relnship part of the facts)
SC: By their mere act of incorporating the provis regarding the associative relnship, they have already violated
the Memo of Instructions from the President stating that the negotiations shall be conducted in accordance
with the principles of sovereignty and territorial integrity.

And besides, the suspensive clause is invalid.

The clause was enacted by virtue of Sec. 4 (a) of EO 3 (Path to Peace), where it is provided that the GRP
Panel, in exploring solutions to the Moro Problem may require administrative action, new legislation, or even
consti amendments.
But can the Pres delegate such power, let alone exercise it?

The power of the president to conduct peace negotiations is implicitly included in her powers as Chief Exec
and Commander in Chief. For her to find means to bring conflicts to an end, she must be given leeway to
explore solutions that may require changes in the Constitution. HOWEVER, the Pres may not unilaterally
implement such solutions—she may only give her recommendations for constitutional change to Congress
since the Pres does not have constituent powers. She may not act in any way as if the assent of the Congress
was assumed as a certainty.

As applied: The clause does not bear the marks of a suspensive condition—it is a term. Hence, it is mandatory
for the GRP to effect the changes to the legal framework contemplated in the MOA, which would include
consti amendments. Such stipulation is inconsistent with the limits of the Pres’ authority to propose
constitutional amendments, it being a virtual guarantee that the Consti will be adjusted to conform to the
MOA. Given the limited nature of the President’s authority to propose constitutional amendments, she cannot
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guarantee to any 3rd party that the required amendments will eventually be put in place, nor even be
submitted to plebiscite.

DISSENT OF VELASCO, JR., J

I. Non-Joinder of MILF was fatal
A. MILF was not impleaded in this case except in one petition
1. Even then, in that petition, MILF was not served a copy and was not asked to comment
B. The unimpleaded party (MILF) is a party to the proposed MOA-AD which involves only 2 parties: MILF
and GRP
1. Result: the Court would not be able to fully adjudicate and legally decide the case without the joinder of
MILF
2. Court cannot nullify a prospective agreement which will affect and legally bind one party without making
said decision binding on the other contracting party
II. The petitions are moot and academic and premature; NO justiciable controversy
A. The MOA-AD is but a proposal on defined consensus points
1. It will remain a mere proposal since the GRP has put off its signing permanently
2. No perfected and enforceable contract
3. It is a non-existent agreement
B. The element of justiciable controversy is palpably absent since there is really no MOA-AD to speak of since
its perfection or effectivity was aborted by supervening events
C. The Court cannot reasonably formulate guiding and controlling constitutional principles, precepts,
doctrines or rules for future guidance of both bench and bar based on a non-existing ancestral domain
agreement or by anticipating what the executive department will likely do or agree on in the future in the
peace negotiating table
D. Since there is no enforceable agreement to speak of, there is nothing to declare unconstitutional
III. The matter of separation of powers will likely be disturbed should the Court meander into alien territory of
the executive and dictate how the final shape of the peace agreement with the MILF should look like.

DISSENT OF NACHURA, J
Nachura J. votes to dismiss the petitions. Supervening events rendered the petitions moot and no longer ripe
for adjudication.
I. Ripeness
A. There is no gainsaying that at the time of the filing of the initial petitions up to the issuance by the SC of the
TRO, there WAS an actual extant controversy
B. However, supervening events effectively eliminated the conflict of rights and opposite legal claims; there is
no longer an actual case controversy
1. The President disbanded the GRP Peace Panel
2. President made a declaration that the MOA-AD will not be signed in its present form, or any form
C. With an abandoned and unsigned MOA-AD and a dissolved Peace Panel, any purported controversy has
virtually disappeared
1. Judicial review cannot be exercised where the incipient actual controversy does not remain extant until the
termination of the case
2. The Court cannot provide reliefs for controversies that are no longer there
II. Mootness
A. The Courts will decide cases, otherwise moot and academic, if:
1. First, there is grave violation of the Constitution
2. Second, paramount public interest involved
3. Third, constitutional issue raised requires formulation of controlling principles to guide the bench, bar,
public
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 4. Fourth, when case is capable of repetition yet evading review
B. First exception does not apply
1. There is no violation of Constitution since the MOA-AD has not been signed and will not be signed
C. Second exception does not apply
1. The issue of paramount public interest will arise only IF the MOA-AD is signed
D. Third exception does not apply
1. Scrutiny of factual antecedents of this case reveals that no imperative to formulate controlling principles
exists
2. EO 3, the Memoranda of Instructions issued by the President are adequate guidelines for the GRP Peace
Panel
a. It would be superfluous for the Court to issue guidelines which, presumably, will be similar to the ones
already in existence, aside from possibly trenching on the separation of powers
3. Besides there is no need to issue guidelines since the Panel has been disbanded
E. Fourth exception is not applicable
1. Sanlakas v. Reyes (separate opinion of Panganiban, J)
a. The theory of “capable of repetition yet evading review” may be invoked only when this court has
jurisdiction over the subject matter
b. Since there is no justiciable controversy, the petitions have become pleas for declaratory relief which the
court has NO original jurisdiction
III. Substantive – The Court should view the case from the perspective of executive power and how it was
exercised
A. As the Commander-in-Chief, implicit is the power to maintain peace and order
1. Hence, President has power to negotiate peace with the MILF and to determine in what form and manner
the peace process should be conducted
B. EO No. 3 and the Memoranda of Instructions by the President constitute the mandate of the GRP Peace
Panel
1. The MOA-AD was crafted and initialed pursuant to the strictures of these issuances
2. Note: Petitioners do NOT raise any question as to the validity of the EO No. 3 and the Memoranda
C. The reliefs prayed for by the petitions show that the petitions must be dismissed
1. Certiorari will NOT lie
a. The MOA-AD will not be signed “in its present form, or in any other form”
b. Court cannot review and inexistent agreement since no legally enforceable rights re created
2. Prohibition will not lie
a. The GRP Panel ceased to exist as it was disbanded
b. There is nothing to prohibit