THE PROVINCE OF NORTH COTABATO, et al . v .

THE GOVERNMENT OF THE

REPUBLIC OF THE PHILIPPINES, et al . 

President Gloria Macapagal-Arroyo, in line with the government‘s policy of pursuing peace
negotiations with the Moro Islamic Liberation Front (MILF), asked Prime Minister Mahathir
Mohammad to convince the MILF to continue negotiating with the 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 (Tripoli Agreement 2001) which consists
of three (3) aspects: a.) security aspect; b.) rehabilitation aspect; and c.) ancestral domain aspect.
Various negotiations were held which led to the finalization of the Memorandum of Agreement
on the Ancestral Domain (MOA-AD). The said memorandum was set to be signed last August 5,
2008. In its body, it grants ―the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The 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 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, embracing the Mindanao-Sulu-Palawan geographic region. With
regard to governance, on the other hand, a shared responsibility and authority between the
Central Government and BJE was provided. The relationship was described as ―associative.
With the formulation of the MOA-AD, petitioners aver that the negotiation and finalization of
the MOA-AD violates constitutional and statutory provisions on public consultation, as
mandated by Executive Order No. 3, and right to information. They further contend that it
violates the Constitution and laws. Hence, the filing of the petition.

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
advi[c]e 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.

In the Matter of the Petition for Issuance of Writ of Habeas Corpus of CAMILO L. SABIO v.
HON. SENATOR RICHARD J. GORDON, et al. 

G.R. No. 174340 17 October 2006, 

Sandoval-Gutierrez, J. (En Banc)

[Congress Power of Inquiry]

FACTS:

Pursuant to Senate Resolution No. 455, Senator Gordon requested PCGG Chairman Sabio and
his Commissioners  to appear as resource persons in the public meeting jointly conducted by
the Committee on Government Corporations and Public Enterprises and Committee on Public
Services.

Chairman Sabio declined the invitation because of prior commitment, and at the same time
invoked Section 4(b) of EO No. 1: “No member or staff of the Commission shall be required to
testify or produce evidence in any judicial, legislative or administrative proceeding concerning
matters within its official cognizance.”

ISSUE:

Whether or not Section 4(b) of E.O. No.1 limits power of legislative inquiry by exempting all
PCGG members or staff from testifying in any judicial, legislative or administrative proceeding.

RULING:

No. Article VI, Section 21 of the 1987 Constitution grants the power of inquiry not only to the
Senate and the House of Representatives, but also to any of their respective committees.  Clearly,
there is a direct conferral of investigatory power to the committees and it means that the
mechanism which the Houses can take in order to effectively perform its investigative functions
are also available to the committees.

It can be said that the Congress’ power of inquiry has gained more solid existence and expansive
construal.  The Court’s high  regard  to  such power is rendered more evident in Senate
v. Ermita, where it categorically ruled that  “the power of inquiry is broad enough to cover
officials of the executive branch.”  Verily, the Court reinforced the doctrine in Arnault  that  “the
operation of government, being a legitimate subject for legislation,  is a proper subject for
investigation” and  that “the power of inquiry is co-extensive with the power to legislate.”

Considering these jurisprudential instructions, Section 4(b) is directly repugnant with Article VI,
Section 21. Section 4(b) exempts the PCGG members and staff from the Congress’ power of
inquiry.  This cannot be countenanced.  Nowhere in the Constitution is any provision granting
such exemption.   The Congress’ power of inquiry, being broad,  encompasses everything that
concerns the administration of existing laws as well as proposed or possibly needed statutes. It
even extends “to government agencies created by Congress and officers whose positions are
within the power of Congress to regulate or even abolish.” PCGG belongs to this class.

A statute may be declared unconstitutional because it is not within the legislative power to enact;
or it creates or establishes methods or forms that infringe constitutional principles; or its purpose
or effect violates the Constitution or its basic principles.

Moreover, Sec. 4(b) of E.O. No. 1 has been repealed by the Constitution because it is
inconsistent with the constitutional provisions on the Congress’ power of inquiry (Art. VI, Sec.
21), the principle of  public accountability (Art. XI, Sec. 1), the policy of full disclosure (Art. II,
Sec. 28), and the right of  access to public information (Art. III, Sec. 7).

Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in
the absence of any constitutional basis.