EN BANC
G.R.
Nos. 183591, 183752, 183893 and 183951 - THE
P
Promulgated:
October 14, 2008
x-----------------------------------------------------------------------------------------x
SEPARATE CONCURRING OPINION
CARPIO, J.:
If this Court did not stop the
signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD), this
country would have been dismembered because the Executive branch would have
committed to amend the Constitution to conform to the MOA-AD. The MOA-AD gives to the Bangsamoro Juridical
Entity (BJE) the attributes of a state, with its own people, territory,
government, armed forces, foreign trade missions, and all other institutions of
a state,[1]
under the BJE’s own basic law or constitution.[2]
Usurpation of the Powers of Congress and the People
The initialed MOA-AD between the
Government of the Republic of the Philippines (GRP) and the Moro Islamic
Liberation Front (MILF) is patently
unconstitutional. The Executive
branch’s commitment under the MOA-AD to amend the Constitution to conform to
the MOA-AD violates Sections 1 and 4, Article XVII of the Constitution. The Executive branch usurps the sole discretionary power of Congress to propose
amendments to the Constitution as well as the exclusive power of the sovereign
people to approve or disapprove such proposed amendments. Sections 1 and 4, Article XVII of the Constitution
provide:
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.
Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.
Indisputably, the Executive branch
has no power to commit to the MILF that the Constitution shall be amended to
conform to the MOA-AD. Such commitment is a grave abuse of discretion amounting
to lack or excess of jurisdiction.[3]
The MOA-AD
states, in paragraph 2(a) on Territory, that “the Parties to this Agreement
commit themselves to the full and mutual implementation of this framework
agreement.” The MOA-AD further
states, in paragraph 7 on Governance, that:
Any provisions of the MOA on Ancestral Domain requiring amendments to the existing legal framework shall come into force upon signing of a comprehensive compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. (Emphasis supplied)
The Executive branch commits to
implement fully the MOA-AD by amending the “existing legal framework,”
impliedly referring to the Constitution. The Executive branch further commits
that such constitutional amendments shall not derogate from prior
GRP-MILF agreements. At the time of
the constitutional amendments, the MOA-AD will be a prior agreement, along with
several other
The phrase “due regard to non-derogation
of prior agreements” means there shall be no deviation from previous
The phrase “due regard” means
mandatory observance and not discretionary observance. When one speaks of “due regard for the law,”
one intends mandatory observance of the law.
The same is true for “due regard to non-derogation of prior agreements,”
which means mandatory observance of non-derogation of previous agreements. The following pronouncements of the Court
reveal the mandatory nature of the phrase “due regard”:
The least this Court can do under the circumstances is to make clear to all and sundry, especially to members of police forces, that the authority conferred on them to maintain peace and order should be exercised with due regard to the constitutional rights, most especially so of those who belong to the lower-income groups. If in a case like the present, the full force of the penal statute is not felt by the perpetrator of the misdeed, then the law itself stands condemned. This we should not allow to happen.[5] (Emphasis supplied)
Entrapment is allowed when it is undertaken with due regard to constitutional and legal safeguards. It has repeatedly been accepted as a valid means of arresting violators of the Dangerous Drugs Law.[6] (Emphasis supplied)
The phrase “due regard” is commonly
found in international treaties and conventions, like the United Nations Convention on the Law of the Sea (UNCLOS) where the
phrase appears at least 16 times. The
phrase “due regard” as used in UNCLOS is explained as follows:
[T]he requirement of “due regard” is a qualification of
the rights of States in exercising the freedoms of the high seas. The standard of “due regard” requires all
States, in exercising their high seas freedoms, to be aware of and consider
the interests of other States in using the
high seas, and to refrain from
activities that interfere with the exercise by other States of the freedom of
the high seas. As the ILC [which prepared drafts of the 1958 LOS
Conventions], stated in its Commentary in 1956, “States are bound to refrain from any acts that might adversely affect
the use of the high seas by nationals of other States.” The construction in
paragraph 2 recognizes that all States have the right to exercise high seas
freedoms, and balances consideration for the rights and interests of all states
in this regard.[7]
(Emphasis supplied)
The phrase “due regard,” as used in the Convention on International Civil Aviation, is understood as giving rise to “a duty of ‘due regard’ upon operators of state aircraft, and thus, upon military aircraft, for the safety of the navigation of civil aircraft.”[8] Thus, “the ‘due regard’ rule remains the principal treaty obligation imposed upon States for the regulation of the flight of military aircraft applicable during times of peace and armed conflict.”[9]
The Chairman of the MILF and its
highest-ranking official, Al Haj Murad Ebrahim, candidly admitted that the
MILF’s understanding is that the Constitution shall be amended to conform to
the MOA-AD. In an ABS-CBN television
interview aired nationwide on
It may be beyond the Constitution but the Constitution can be amended and revised to accommodate the agreement. What is important is during the amendment, it will not derogate or water down the agreement because we have worked this out for more than 10 years now.[10] (Emphasis supplied)
During the oral arguments, Atty.
Sedfrey Candelaria, principal counsel to the
Clearly, under the MOA-AD, the
Executive branch assumes the mandatory
obligation to amend the Constitution to conform to the MOA-AD. During the oral arguments, Atty. Sedfrey
Candelaria admitted that the implementation of the MOA-AD requires “drastic changes” to the Constitution.[12] As directed by Justice Antonio T. Carpio,
Atty. Candelaria undertook to submit to the Court a listing of all provisions
in the Constitution that needed amendment to conform to the MOA-AD.[13] In their Memorandum dated 24 September 2008,
respondents stated: “In compliance with the said directive, the constitutional provisions
that may be affected, as relayed by Atty. Sedfrey Candelaria, are the following
— Sections 1, 5, 18, 20 and 21 of Article X under Local Autonomy.”[14] This listing is grossly incomplete. A
more thorough scrutiny shows that the “drastic changes” are amendments to the
following provisions of the Constitution:
1. Article 1 on the
2. Section 3, Article II on the role of the
Armed Forces of the
3. Article III on the Bill of Rights. The MOA-AD does not state that the Bill of
Rights will apply to the BJE. The MOA-AD
refers only to “internationally recognized human rights instruments”[19]
such as the United Nations Universal Declaration on Human Rights, International
Humanitarian Law, and the United Nations Declaration on the Rights of
Indigenous Peoples. No reference is made
to the Bill of Rights or even to the Constitution.
4. Section 1, Article VI on the Legislative
Department.[20] Legislative power shall no longer be vested
solely in the Congress of the
5. Section 1, Article
6. Section 16, Article
7. Section 17, Article
8. Section 18, Article
9. Section 21, Article
10. Section 1, Article VIII on judicial
power being vested in one Supreme
Court.[30] Since the BJE will have “its own x x x judicial
system,”[31] the BJE
will also have its own Supreme Court.
11. Section 2, Article VIII on the power of
Congress to define and apportion the jurisdiction of lower courts.[32] Under the MOA-AD, Congress cannot prescribe
the jurisdiction of BJE courts.
12. Section 5(2), Article VIII on the power
of the Supreme Court to review decisions of lower courts and to promulgate
rules of pleadings and practice in all courts.[33] Under the MOA-AD, the BJE will have its own
judicial system. Decisions of BJE courts
are not reviewable by the Supreme Court.
13. Section 5(6), Article
14. Section 6, Article VIII on the Supreme
Court’s administrative supervision over all
courts and their personnel.[35] Under the MOA-AD, the Supreme Court will not
exercise administrative supervision over BJE courts and their personnel.
15. Section 9, Article VIII on the
appointment by the President of all
judges in the Judiciary from nominees recommended by the Judicial and Bar
Council.[36] This provision will not apply to courts in
the BJE.
16. Section
11, Article VIII on the power of the Supreme Court to discipline judges of all lower courts.[37] This power will not apply to judges in the
BJE.
17. Section 1(1), Article IX-B on the power
of the Civil Service Commission to administer the civil service.[38] Under the MOA-AD, the BJE will have “its own x x x civil service”[39]
The Civil Service Commission will have no jurisdiction over the BJE’s civil
service.
18. Section
2(1), Article IX-C on the power of the Commission on Elections to enforce and
administer all election laws.[40] Under the MOA-AD, the BJE will have “its own x x x electoral system.”[41]
The Commission on Elections will have no jurisdiction over the BJE’s electoral
system.
19. Section 2(1), Article IX-D on the power
of the Commission on Audit to examine and audit all subdivisions, agencies and instrumentalities of the Government.[42] Under the MOA-AD, the BJE can “build, develop and maintain its own
institutions”[43]
without limit. The BJE can create its own audit authority. The Commission on Audit will have no
jurisdiction over the BJE or its subdivisions, agencies or instrumentalities.
20. Section 1, Article X on the political
subdivisions of the
21. Section 4, Article X on the power of the
President to exercise general supervision over all local governments.[45] Under the MOA-AD, this provision will not
apply to the BJE.
22. Section 5, Article X subjecting the
taxing power of local governments to limitations prescribed by Congress.[46] Under the MOA-AD, the BJE shall have “its own x x x legislation.”[47]
The BJE’s taxing power will not be subject to limitations imposed by national
law.
23. Section 6, Article X on the “just share”
of local government units in national taxes.[48] Since the BJE is in reality independent from
the national government, this provision will have to be revised to reflect the
independent status of the BJE and its component cities, municipalities and
barangays vis-à-vis other local government units.
24. Section 10, Article X on the alteration
of boundaries of local government units, which requires a plebiscite “in the
political units affected.”[49] Under paragraph 2(d) on Territory of the
MOA-AD,[50]
the plebiscite is only in the barangays and municipalities identified as
expansion areas of the BJE. There will
be no plebiscite “in the political units affected,” which should include all
the barangays within a city, and all municipalities within a province.
25. Section 15, Article X on the creation of
autonomous regions within the framework of the Constitution, national
sovereignty and territorial integrity of the
26. Section 16, Article X on the President’s
power to exercise general supervision over autonomous regions.[52] This provision will not apply to the BJE,
which is totally independent from the President’s supervision.
27. Section 17, Article X which vests in the
National Government residual powers, or those powers which are not granted by
the Constitution or laws to autonomous regions.[53] This will not apply to the BJE.
28. Section 18, Article X which requires
that personal, family and property laws of autonomous regions shall be
consistent with the Constitution and national laws.[54] This will not apply to the BJE which will
have its own basic law or constitution.[55]
29. Section 20, Article X on the legislative
powers of autonomous regional assemblies whose laws are subject to the
Constitution and national laws.[56] This provision will not apply to the BJE.
30. Section 21, Article X on the
preservation of peace and order within autonomous regions by the local police
as provided in national laws.[57]
Under the MOA-AD, the BJE shall have “its
own x x x police”[58]
to preserve peace and order within the BJE.
31. Section 2, Article XII on State
ownership of all lands of the public domain and of all natural resources in the
32. Section 9, Article XII on the
establishment of an independent economic and planning agency headed by the
President.[62] This agency is the National Economic and
Development Authority. Under the MOA-AD,
the BJE will have its own economic planning agency.
33. Section 20, Article XII on the
establishment of an independent monetary authority, now the Bangko Sentral ng Pilipinas.[63] Under the MOA-AD, the BJE will have its own
financial and banking authority.[64]
34. Section 4, Article XVI on the
maintenance of “a regular force
necessary for the security of the State.”[65] This provision means there shall only be one “Armed Forces of the Philippines”
under the command and control of the President. This provision will not apply
to the BJE since under the MOA-AD, the BJE shall have “its own x x x internal security force”[66]
which will not be under the command and control of the President.
35. Section 5(6), Article XVI on the
composition of the armed forces, whose officers and men must be recruited
proportionately from all provinces and cities as far as practicable.[67] This will not apply to the BJE’s internal
security force whose personnel will come only from BJE areas.
36. Section 6, Article XVI on the
establishment of one police force which shall be national in scope under the
administration and control of a national police commission.[68] The BJE will have “its own x x x police”[69]
which is a regional police force not
administered or controlled by the National Police Commission.
The Executive branch thus guarantees to the MILF that the Constitution
shall be drastically overhauled to conform to the MOA-AD.
The Executive branch completely disregards that under the Constitution
the sole discretionary power to propose amendments to the Constitution lies
with Congress, and the power to approve or disapprove such proposed amendments
belongs exclusively to the people.
The
claim of respondents that the phrase “prior agreements” does not refer to the
MOA-AD but to
Violation of Constitutional Rights of Lumads
Under the MOA-AD, the Executive
branch also commits to incorporate all the Lumads in Mindanao, who are
non-Muslims, into the Bangsamoro people who are Muslims. There are 18 distinct Lumad groups in
Mindanao with their own ancestral domains and their own indigenous customs,
traditions and beliefs. The Lumads have
lived in Mindanao long before the arrival of Islam and Christianity. For centuries, the Lumads have resisted
Islam, a foreign religion like Christianity.
To this day, the Lumads proudly continue to practice their own
indigenous customs, traditions and beliefs.
Suddenly,
without the knowledge and consent of the Lumads, the Executive branch has erased their identity as separate and
distinct indigenous peoples. The
MOA-AD, in paragraph 1 on Concepts and Principles, provides:
It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros”. The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization and their descendants whether mixed or of full native blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the indigenous people shall be respected. (Emphasis supplied)
The
declaration that it is the “birthright
of x x x all Indigenous peoples of
Mindanao to identify themselves and be accepted as ‘Bangsamoros’” is
cultural genocide. It erases by a mere
declaration the identities, culture, customs, traditions and beliefs of 18
separate and distinct indigenous groups in Mindanao. The “freedom of choice” given to the Lumads
is an empty formality because officially
from birth they are already identified
as Bangsamoros. The Lumads may
freely practice their indigenous customs, traditions and beliefs, but they are
still identified and known as Bangsamoros under the authority of the BJE.
The MOA-AD divests the Lumads of
their ancestral domains and hands over possession, ownership and jurisdiction
of their ancestral domains to the BJE.
In paragraphs 2, 3 and 6 on Concepts and Principles, the MOA-AD gives
ownership over the Bangsamoros’ ancestral domain to the Bangsamoro people,
defines the ancestral domain of the Bangsamoros, and vests jurisdiction and
authority over such ancestral domain in the BJE, thus:
2. It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social, cultural and political identity and pride of all the Bangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants.
3. x x x Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually x x x.
x x x x
6. Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral territory, as well as the delineation of ancestral domains/lands of the Bangsamoro people located therein. (Emphasis supplied)
After defining the Bangsamoro people
to include all the Lumads, the MOA-AD then defines the ancestral domain of the
Bangsamoro people as the ancestral domain of all the Bangsamoros,
which now includes the ancestral domains of all the Lumads. The MOA-AD declares that exclusive ownership
over the Bangsamoro ancestral domain belongs to the Bangsamoro people. The
MOA-AD vests jurisdiction and authority over the Bangsamoros’ ancestral domain
in the BJE. Thus, the Lumads lost not
only their separate identities but also their ancestral domains to the
Bangsamoros and the BJE.
The incorporation of the Lumads as
Bangsamoros, and the transfer of their ancestral domains to the BJE, without
the Lumads’ knowledge and consent,[70]
violate the Constitutional guarantee that the “State recognizes and promotes the rights of indigenous cultural communities within
the framework of national unity and development.”[71] The incorporation also violates the
Constitutional guarantee that the “State, subject to the provisions of this
Constitution and national development policies and programs, shall protect the rights of indigenous cultural
minorities to their ancestral lands to ensure their economic, social, and
cultural well-being.”[72]
These Constitutional guarantees, as
implemented in the Indigenous Peoples’ Rights Act of 1997, grant the Lumads
“the right to participate fully, if they so chose, at all levels of decision-making in matters which may affect their rights, lives and destinies.”[73] Since the Executive branch kept the MOA-AD
confidential until its publication in the Philippine
Daily Inquirer on 4 August 2008,
the day before its scheduled signing in Kuala Lumpur, Malaysia, there could
have been no participation by the 18 Lumad groups of Mindanao in their
incorporation into the Bangsamoro. This
alone shows that the Executive branch did not consult, much less secure the
consent, of the Lumads on their rights, lives and destinies under the
MOA-AD. In fact, representatives of the
18 Lumad groups met in Cagayan de Oro City and announced on 27 August 2008,
through their convenor Timuay Nanding Mudai, that “we cannot accept that we are part of the Bangsamoro.”[74]
The incorporation of the Lumads, and
their ancestral domains, into the Bangsamoro violates the Constitutional and
legislative guarantees recognizing and protecting the Lumads’ distinct cultural
identities as well as their ancestral domains. The violation of these
guarantees makes the MOA-AD patently
unconstitutional.
The incorporation of the Lumads, and
their ancestral domains, into the Bangsamoro without the Lumads’ knowledge and
consent also violates Article 8 of the United
Nations Declaration on the Rights of Indigenous Peoples.[75] Section 8 of the Declaration states:
Article 8.
1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them. (Emphasis supplied)
The provisions of Article 8 were
designed to prevent cultural genocide
of indigenous peoples. This will happen
if the Lumads are identified from birth as Bangsamoros and their ancestral
domains are absorbed into the ancestral domain of the Bangsamoros.
There
is another provision in the MOA-AD that could prove oppressive to the Lumads,
and even invite conflicts with Christians.
The MOA-AD, in paragraph 4 on Territory, empowers the BJE to establish political subdivisions within the
Bangsamoro ancestral domain, as follows:
All territorial and geographic areas in Mindanao and its adjacent islands including Palawan and the Sulu archipelago that have been declared recognized, and/or delineated as ancestral domain and ancestral land of the Bangsamoro people as their geographical areas, inclusive of settlements and reservations, may be formed or constituted into political subdivisions of the Bangsamoro territorial jurisdictions subject to the principles of equality of peoples and mutual respect and to the protection of civil, political, economic, and cultural rights in their respective jurisdictions.
Thus, the BJE can create political
subdivisions — barangays and municipalities — within the Bangsamoro ancestral
domain. Under the MOA-AD, the Bangsamoro
ancestral domain includes the ancestral domains of the Lumads. The BJE can create barangays and
municipalities in areas that are presently the ancestral domains of the
Lumads. The BJE can station its police and internal security force in these
areas. Many of these areas — the present ancestral domains of the Lumads
— are located within provinces, cities and municipalities where Christians are
the majority.
There are obvious possible adverse
ramifications of this power of the BJE to create political subdivisions within
provinces, cities and municipalities outside
of the BJE territory. The creation by the BJE of such political
subdivisions will alter the boundaries of the affected provinces, cities and
municipalities, an alteration that, under the Constitution, requires an act of
Congress and a plebiscite in the affected political units.[76] The Executive branch must conduct widespread
consultations not only with the Lumads, but also with the Christians who, under
the MOA-AD, will be affected by the creation of such BJE political subdivisions
within their provinces, cities and municipalities.
Petitions Present Justiciable Controversy
The
claim of respondents that the MOA-AD, not having been signed but merely
initialed, does not give rise to an actual controversy cognizable by the Court,
is gravely erroneous. The MOA-AD has two features: (1) as an
instrument of cession of territory and sovereignty to a new state, the BJE; and
(2) as a treaty with the resulting BJE, governing the associative relationship
with the mother state,[77] the
Philippines, whose only important role in the relationship is “to take charge
of external defense.”[78] Justice Vicente V. Mendoza, a former member
of this Court and a recognized authority on constitutional law, states:
It
is indeed true that the BJE is not fully independent or sovereign and indeed it
is dependent on the Philippine government for its external defense and only
lacks foreign recognition, at least at the present time. Nonetheless it is a state as the Philippines was a state during the
Commonwealth period, which was not a part of the territory of the United States
although subject to its sovereignty. As a state, it was a signatory to several
treaties and international agreements, such as the Charter of the United
Nations of January 1, 1942, and a participant in several conferences such as
that held in Bretton Woods, New Hampshire, on July 1-22, 1944, on the
Thus, once the MOA-AD is signed,
the MILF, as the acknowledged representative of the BJE, can exercise the
rights of the BJE as a state.
The
MILF, on behalf of the BJE, can then demand that the Philippines comply, under
the principle of pacta sunt servanda, with
the express terms of the MOA-AD requiring the Philippines to amend its
Constitution to conform to the MOA-AD.
Under the 1969 Vienna Convention
on the Law of Treaties, the Philippines cannot invoke its internal law,
including its Constitution, as justification for non-compliance with the
MOA-AD, which operates as a treaty between the GRP and the BJE.[80]
Thus, under international law, the Philippines is obligated to amend its
Constitution to conform to the MOA-AD, whether
Congress or the Filipino people agree or not.
If
this Court wants to prevent the dismemberment of the Philippines, a
dismemberment that violates the Constitution, the Court should not wait for the
The forum for the resolution of any
dispute between the
A party to the Statute of the ICJ,
like the Philippines, is bound by the ICJ’s determination whether the ICJ has
jurisdiction over a dispute.[84] In deciding the issue of jurisdiction, the
ICJ may or may not follow past precedents in the light of special circumstances
of the case before it. The Philippines will be risking dismemberment of the
Republic in the hands of an international tribunal that is not bound by the
Philippine Constitution.
More importantly, the BJE,
represented by the MILF and endorsed by the OIC, may apply to be a party to the
Statute of the ICJ and accept the compulsory jurisdiction of the ICJ.[85] A State that recognizes the compulsory
jurisdiction of the ICJ has the right to sue before the ICJ any State that has
accepted the same compulsory jurisdiction of the ICJ.[86] The fact that the BJE has all the attributes of a state, with
the acknowledged power to enter into international treaties with foreign
countries, gives the BJE the status and legal personality to be a party to a
case before the ICJ.[87] In fact, by agreeing in the MOA-AD that the
BJE, on its own, can enter into international treaties,[88]
the Philippines admits and recognizes the international legal personality of
the BJE, with the capacity to sue and be sued in international tribunals.
In short, for this Court to wait for
the signing of the MOA-AD before assuming jurisdiction will allow an international
tribunal to assume jurisdiction over the present petitions, risking the
dismemberment of the Republic.
It
is providential for the Filipino people that this Court issued the Temporary
Restraining Order enjoining the signing of the MOA-AD in the nick of time on 4
August 2008. When the Court issued the TRO, the members of the GRP Panel were
already on their way to Malaysia to sign the MOA-AD the following day, 5 August
2008, before representatives of numerous states from the OIC, Europe, North
America, ASEAN and other parts of Asia.
Indeed, public respondents should be thankful to this Court for saving
them from inflicting an ignominious and irreversible catastrophe to the nation.
Petitions Not Mooted
The
claim of respondents that the present petitions are moot because during the
pendency of this case the President decided not to sign the MOA-AD, “in its
present form or in any other form,”[89]
is erroneous. Once the Court acquires jurisdiction over a case, its
jurisdiction continues until final termination of the case.[90] The claim of respondents that the President
never authorized the
Needless to say, the claim that the
This Memorandum prescribes the guidelines for the Government Negotiating Panel (GPNP) for the peace negotiation process with the Moro Islamic Liberation Front (MILF):
1. The negotiations shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the principles of the sovereignty and territorial integrity of the Republic of the Philippines.
2. The negotiation process shall be pursued in line with the national Comprehensive Peace Process, and shall seek a principled and peaceful resolution of the armed conflict, with neither blame nor surrender, but with dignity for all concerned.
3. The objective of the GPNP is to attain a peace settlement that shall:
a. Contribute to the resolution of the root cause of the armed conflict, and to societal reform, particularly in Southern Philippines;
b.
Help attain a lasting peace and
comprehensive stability in Southern Philippines under a meaningful program of autonomy
for Filipino Muslims, consistent with the Peace Agreement entered into by the
c. Contribute to reconciliation and reconstruction in Southern Philippines.
4. The general approach to the negotiations shall include the following:
a. Seeking a middle ground between the aspirations of the MILF and the political, social and economic objectives of the Philippine Government;
b. Coordinated Third Party facilitation, where needed;
c. Consultation with affected communities and sectors. (Emphasis supplied)
Indisputably, the members of the
Glaring Historical Inaccuracy in the MOA-AD
The
MOA-AD likewise contains a glaring historical inaccuracy. The MOA-AD declares the Bangsamoro as the
single “First Nation.”[93] The term “First Nations” originated in
Canada.[94] The term refers to indigenous peoples of a
territory, with the assumption that there are one or more subsequent nations or
ethnic groups, different from the indigenous peoples, that settled on the same
territory. Thus, in Canada, the United
States, Australia and New Zealand, the white Europeans settlers are the subsequent
nations belonging to a different ethnic group that conquered the indigenous
peoples. In Canada, there is not a
single First Nation but more than 600 recognized First Nations, reflecting the
fact that the indigenous peoples belong to various “nation” tribes.
In
Mindanao, the Lumads who kept their indigenous beliefs, as well as those who
centuries later converted to either Islam or Christianity, belong to the same
ethnic Malay race. Even the settlers
from Luzon and Visayas belong to the same ethnic Malay race. Declaring the Bangsamoros alone as the
single “First Nation” is a historical anomaly.
If ethnicity alone is the criterion in declaring a First Nation, then
all peoples of Mindanao belonging to the Malay race are the First Nations. If resistance to foreign beliefs is the criterion
in declaring a First Nation, then the 18 Lumad groups in Mindanao are the First
Nations.
When
asked during the oral arguments why the MOA-AD declares the Bangsamoros as the
single “First Nation,” the Solicitor General answered that “the MILF requested
that they be considered a First Nation.”[95] The GRP Panel should not readily agree to
include in the text of the agreement, an official document, anything that the
MILF Panel wants. Claims to historicity
must be verified because historical inaccuracies have no place in a peace
agreement that resolves a dispute rooted to a large extent in historical
events.
The Cost of Reparation Could Bankrupt the National Government
The
MOA-AD recognizes that the Bangsamoro’s ancestral domain, homeland and historic
territory cover the entire Mindanao, Sulu and Palawan areas.[96] While the MOA-AD recognizes “vested property
rights,”[97] other
than licenses or contracts to exploit natural resources which are revocable at
will by the BJE, the MOA-AD requires the Government to provide “adequate reparation” to the Bangsamoro
for the “unjust dispossession of their territorial and proprietary rights,
customary land tenures, or their marginalization.”[98] Such unjust dispossession includes not only
the lands taken from the Bangsamoro since the arrival of the Spaniards in 1521,
but also all the natural resources removed from such lands since 1521. In short, the Government must pay
compensation to the BJE for all titled private lands, as well as all natural
resources taken or extracted, in Mindanao, Sulu and Palawan.
If
the lands are still State owned — like public forests, military and civil
reservations, public school sites, public parks or sites for government
buildings — the Government must return
the lands to the BJE. The MOA-AD further
states, “Whenever restoration is no longer possible, the
The cost of reparation could bankrupt
the Government. The Executive branch
never consulted Congress, which exercises exclusively the power of the purse,
about this commitment to pay “adequate reparation” to the BJE, a reparation
that obviously has a gargantuan cost.
Of course, under Philippine law Congress is not bound by this commitment
of the Executive branch. Under international law, however, the Philippines is
bound by such commitment of the Executive branch.
There is no Disarmament under the MOA-AD
Respondents
have repeatedly claimed during the oral arguments that the final comprehensive
peace agreement will lead to the disarmament of the MILF.[99] However, paragraph 8 on Governance of the
MOA-AD allows the BJE “to build, develop
and maintain its own x x x police
and internal security force.”
Clearly, the BJE’s internal security force is separate from its
police. The obvious intention is to
constitute the present MILF armed fighters into the BJE’s internal security
force. In effect, there will be no
disarmament of the MILF even after the signing of the comprehensive peace
agreement.
The BJE can deploy its internal
security force not only within the “core”[100]
BJE territory, but also outside of the core BJE territory, that is, in ancestral
lands of the Lumads that are located in Christian provinces, cities and
municipalities. Under paragraphs 1 and 3
on Concepts and Principles of the MOA-AD, the Lumads and all their ancestral
lands in Mindanao, Sulu and Palawan are made part of the BJE. Thus,
the MOA-AD even allows the MILF to station permanently its MILF armed fighters
within Christian provinces, cities and municipalities outside of the core BJE
territory.
Duty to
Preserve Territorial Integrity and National Sovereignty
Under
the United Nations Declaration on the
Rights of Indigenous Peoples, which is one of the documents referred to in
the Terms of Reference of the MOA-AD, the right to self-determination of
indigenous peoples does not mean a right to dismember or impair the territorial
integrity or political unity of a sovereign and independent State like the
Philippines. Article 46 of the
Declaration states:
Article 46
1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. (Emphasis supplied)
Under international law, every
sovereign and independent State has the inherent right to protect from
dismemberment its territorial integrity, political unity and national
sovereignty. The duty to protect the
territorial integrity, political unity and national sovereignty of the nation
in accordance with the Constitution is not the duty alone of the Executive
branch. Where the Executive branch is
remiss in exercising this solemn duty in violation of the Constitution, this
Court, in the appropriate case as in the present petitions, must step in
because every member of this Court has taken a sworn duty to defend and uphold
the Constitution.
A Final Word
No one will dispute that the nation
urgently needs peace in Mindanao. The entire nation will truly rejoice if peace
finally comes to Mindanao. The Executive branch must therefore continue to
pursue vigorously a peaceful settlement of the Moro insurgency in
Mindanao. No nation can progress and
develop successfully while facing an internal armed conflict.[101]
However, any peace agreement that
calls for amendments to the Constitution, — whatever the amendments may be, including the creation of the BJE — must
be subject to the constitutional and legal processes of the Philippines. The
constitutional power of Congress to propose amendments to the Constitution, and
the constitutional power of the people to approve or disapprove such
amendments, can never be disregarded. The Executive branch cannot usurp such discretionary
sovereign powers of Congress and the people, as the Executive branch did when
it committed to amend the Constitution to conform to the MOA-AD.
There must also be proper
consultations with all affected stakeholders, where the Constitution or existing
laws require such consultations. The
law requires consultations for a
practical purpose — to build consensus and popular support for an initiative,
in this case the peace agreement.
Consultations assume greater importance if the peace agreement calls for
constitutional amendments, which require ratification by the people. A peace agreement negotiated in secret,
affecting the people’s rights, lives and destinies, that is suddenly sprung on
the people as a fait accompli, will
face probable rejection in a plebiscite.
In short, a peace agreement that
amends the Constitution can be lasting only if accepted by the people in
accordance with constitutional and legal processes.
Accordingly,
I vote to GRANT the petitions and
declare the MOA-AD UNCONSTITUTIONAL.
ANTONIO T. CARPIO
Associate Justice
[1] Paragraph 8
on Governance of the MOA-AD provides: “The Parties agree that the BJE shall be empowered to build, develop and maintain its own institutions, inclusive of,
civil service, electoral, financial and
banking, education, legislation, legal, economic, and police and internal
security force, judicial system and correctional institutions, necessary
for developing a progressive Bangsamoro society the details of which shall be
discussed in the negotiation of the Comprehensive Compact.” (Emphasis supplied)
[2] Paragraph 6
on Governance of the MOA-AD provides:
“The modalities for the governance intended to settle the outstanding
negotiated political issues are deferred after the signing of the MOA-AD.
The
establishment of institutions for governance in a Comprehensive Compact,
together with its modalities during the transition period, shall be fully
entrenched and established in the basic
law of the BJE. The Parties shall faithfully comply with their commitment
to the associative arrangements upon entry into force of a Comprehensive
Compact.” (Emphasis supplied)
[3] Section 1,
Article VIII of the Constitution provides: “The judicial power shall be vested
in one Supreme Court and in such lower courts as may be established by law.
Judicial
power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.”
[4] Some of these agreements are mentioned in the Terms of Reference of the MOA-AD. In their Compliance dated 22 September 2008, respondents included the following agreements not mentioned in the Terms of Reference: (1) Implementing Guidelines on the Humanitarian, Rehabilitation and Development Aspects of the GRP-MILF Tripoli Agreement on Peace of 2001 dated 7 May 2002; and (2) Implementing Guidelines on the Security Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 dated 7 August 2001.
[5]
People
v. Gumahin, 128 Phil. 728, 757
(1967).
[6]
People
v. Padasin, 445 Phil. 448. 455 (2003).
[7] George K.
Walker, DEFINING TERMS IN THE 1982 LAW OF THE SEA CONVENTION IV: THE LAST ROUND
OF DEF
[8] Michel
Bourbonniere and Louis Haeck, MILITARY AIRCRAFT AND INTERNATIONAL LAW: CHICAGO
OPUS 3, Journal of Air Law and Commerce, Summer 2001.
[9] Id.
[11]
[12]
Id. at 297.
[13]
Id. at 296-298.
[14] Memorandum of Respondents dated 24 September 2008, p. 56.
[15] Article I on
the Constitution provides: “The national territory comprises the Philippine
archipelago, with all the islands and waters embraced therein, and all other
territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the
internal waters of the Philippines.”
[16]
[17] Section 3,
Article II of the Constitution provides: “Civilian authority is, at all times,
supreme over the military. The Armed
Forces of the Philippines is the protector of the people and the State. Its
goal is to secure the sovereignty of the State and the integrity of the
national territory.” (Emphasis supplied)
[18] Paragraph 4
on Resources of the MOA-AD provides: “The
BJE is free to enter into any economic cooperation and trade relations with
foreign countries: provided, however, that such relationships and
understandings do not include aggression against the Government of the Republic
of the Philippines; provided, further
that it shall remain the duty and obligation of the Central Government to take
charge of external defense. Without prejudice to the right of the
Bangsamoro juridical entity to enter into agreement and environmental
cooperation with any friendly country affecting its jurisdiction, it shall
include:
a. the option to establish and open Bangsamoro
trade missions in foreign countries with which it has economic cooperation
agreements; and
b. the
elements bearing in mind the mutual benefits derived from Philippine
archipelagic status and security.
And, in
furtherance thereto, the Central
Government shall take necessary steps to ensure the BJE’s participation in
international meetings and events, e.g. ASEAN meetings and other specialized
agencies of the United Nations. This
shall entitle the BJE’s participation in Philippine official missions and
delegations that are engaged in the negotiation of border agreements or
protocols for environmental protection, equitable sharing of incomes and
revenues, in the areas of sea, seabed and inland seas or bodies of water
adjacent to or between islands forming part of the ancestral domain, in
addition to those of fishing rights.”
(Emphasis supplied)
[19] Paragraph 6
on Terms of Reference of the MOA-AD provides: “ILO Convention No. 169, in
correlation to the UN Declaration on the
Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise known
as the Indigenous Peoples Rights Act of 1997, the UN Charter; the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), and internationally recognized human rights
instruments.” (Emphasis
supplied)
[20] Section 1,
Article VI of the Constitution provides: “The
legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and referendum.”
(Emphasis supplied)
[21] Paragraph 8 on Governance of the MOA-AD, see note 1.
[22] Section 20,
Article X of the Constitution provides: “Within its territorial jurisdiction
and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall
provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural
resources;
(4) Personal, family, and property
relations;
(5) Regional urban and rural planning
development;
(6) Economic, social, and tourism
development;
(7) Educational policies;
(8) Preservation and development of the
cultural heritage; and
(9) Such other matters as may be
authorized by law for the promotion of the general welfare of the people of the
region. (Emphasis supplied)
[23] Section 1, Article
[24] Section 4, Article X of the Constitution provides: “The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.” (Emphasis supplied)
[25] Section 16, Article
[26] Section 17, Article
[27] Section 18, Article
[28] Section 21, Article
[29] See note 18.
[30] Section 1, Article VIII of the Constitution provides: “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.”
[31] See note 1.
[32] Section 2 of Article VIII provides: “The Congress shall have the power to
define, prescribe, and apportion the jurisdiction of various courts but may
not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof.
No law
shall be passed reorganizing the Judiciary when it undermines the security of
tenure of its Members.” (Emphasis
supplied)
[33] Section
5(2), Article VIII of the Constitution provides: “The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over
cases affecting ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
(2) Review,
revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the
constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b) All cases involving the legality of
any tax, impost, assessment, or toll, or any penalty imposed in relation
thereto.
(c) All cases in which the jurisdiction
of any lower court is in issue.
(d) All criminal cases in which the
penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or
question of law is involved.
(3) Assign temporarily judges of lower
courts to other stations as public interest may require. Such temporary
assignment shall not exceed six months without the consent of the judge
concerned.
(4) Order a change of venue or place of
trial to avoid a miscarriage of justice.
(5) Promulgate
rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.
(6) Appoint
all officials and employees of the Judiciary in accordance with the Civil
Service Law.” (Emphasis
supplied)
[34]
Id.
[35] Section 6, Article VIII of the Constitution provides: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.”
[36] Section 9,
Article VIII of the Constitution provides: “The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by
the Judicial and Bar Council for every vacancy. Such appointments need no
confirmation.
For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.” (Emphasis supplied)
[37] Section 11, Article VIII of the Constitution provides: “The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.” (Emphasis supplied)
[38] Section 1(1), Article IX-B of the Constitution provides: “The Civil Service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment.” (Emphasis supplied)
[39] See note 1.
[40] Section
2(1), Article IX-C of the Constitution provides: “The Commission on Elections shall exercise the following powers and
functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.” (Emphasis supplied)
[41] See note 1.
[42] Section 2(1), Article IX-D of the Constitution provides: “The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.” (Emphasis supplied)
[43] See note 1.
[44] Section 1, Article X of the Constitution provides: “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.”
[45] Section 4,
Article X of the Constitution provides: “The
President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities,
and cities and municipalities with respect to component barangays shall ensure
that the acts of their component units are within the scope of their prescribed
powers and functions.” (Emphasis
supplied)
[46] Section 5, Article X of the Constitution provides: “Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.” (Emphasis supplied)
[47] See note 1.
[48] Section 6,
Article X of the Constitution provides: “Local government units shall have a
just share, as determined by law, in the national taxes which shall be
automatically released to them.”
[49] Section 10,
Article X of the Constitution provides: “No province, city, municipality, or
barangay may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in
the Local Government Code and subject to
approval by a majority of the votes cast in a plebiscite in the political units
directly affected.” (Emphasis
supplied)
[50] Paragraph 2(d) on Territory of the MOA-AD provides. “Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas enumerated in the list and depicted in the map as Category A attached herein (the “Annex”).” (Emphasis supplied)
[51] Section 15, Article X of the Constitution provides: “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.” (Emphasis supplied)
[52] Section 16,
Article X of the Constitution provides: “The President shall exercise general
supervision over autonomous regions to
ensure that the laws are faithfully executed.”
[53] Section 17, Article X of the Constitution provides: “All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.”
[54] Section 18,
Article X of the Constitution provides: “The Congress shall enact an organic
act for each autonomous region with the assistance and participation of the
regional consultative commission composed of representatives appointed by the
President from a list of nominees from multisectoral bodies. The organic act
shall define the basic structure of government for the region consisting of the
executive department and legislative assembly, both of which shall be elective
and representative of the constituent political units. The organic acts shall likewise provide for special courts with
personal, family, and property law jurisdiction consistent with the provisions
of this Constitution and national laws.
The
creation of the autonomous region shall be effective when approved by 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.”
[55] See note 2.
[56] See note 22.
[57] Section 21, Article X of the Constitution provides: “The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government.” (Emphasis supplied)
[58] See note 1.
[59] Section 2, paragraph 1, Article XII of the Constitution provides: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.” (Emphasis supplied)
[60] Paragraph 3 on Concepts and Principles of the MOA-AD provides: “Both Parties acknowledge that ancestral domain does not form part of the public domain but encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well as all natural resources therein that have inured or vested ancestral rights on the basis of native title. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.” (Emphasis supplied)
[61] Paragraph 1
on Concepts and Principles of the MOA-AD provides: “It is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as “Bangsamoros”. The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or
colonization of its descendants whether mixed or of full blood. Spouses and
their descendants are classified as Bangsamoro. The freedom of choice of the
Indigenous people shall be respected.”
(Emphasis supplied)
[62] Section 9,
Article XII of the Constitution provides: “The
Congress may establish an independent economic and planning agency headed by
the President, which shall, after consultations with the appropriate public
agencies, various private sectors, and local government units, recommend to
Congress, and implement continuing integrated and coordinated programs and
policies for national development.
Until the
Congress provides otherwise, the National Economic and Development Authority
shall function as the independent planning agency of the government.” (Emphasis supplied)
[63] Section 20,
Article XII of the Constitution provides: “The
Congress shall establish an independent central monetary authority, the
members of whose governing board must be natural-born Filipino citizens, of known
probity, integrity, and patriotism, the majority of whom shall come from the
private sector. They shall also be subject to such other qualifications and
disabilities as may be prescribed by law. The authority shall provide policy
direction in the areas of money, banking, and credit. It shall have supervision
over the operations of banks and exercise such regulatory powers as may be
provided by law over the operations of finance companies and other institutions
performing similar functions.
Until the
Congress otherwise provides, the Central Bank of the Philippines, operating
under existing laws, shall function as the central monetary authority.” (Emphasis supplied)
[64]
See note 1.
[65] Section 4, Article XVI of the Constitution provides: “The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve, as may be provided by law. It shall keep a regular force necessary for the security of the State.” (Emphasis supplied)
[66]
See note 1.
[67] Section 5(6), Article XVI of the Constitution provides: “The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable.”
[68] Section 6,
Article XVI of the Constitution provides: “The State shall establish and
maintain one police force, which shall
be national in scope and civilian in character, to be administered and
controlled by a national police commission. The authority of local
executives over the police units in their jurisdiction shall be provided by
law.” (Emphasis supplied)
[69] See note 1.
[70] Philippine Daily Inquirer, 27 August 2008; see also http://newsinfo.inquirer.net/inquirerheadlines/ nation/view/20080827-157044/Respect-our-domain-lumad-tell-Moro-rebs.
[71] Section 22, Article II of the Constitution provides: “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.”
[72] Section 5,
Article XII of the Constitution provides: “The State, subject to the provisions
of this Constitution and national development policies and programs, shall
protect the rights of indigenous cultural communities to their ancestral lands
to ensure their economic, social, and cultural well-being.
The
Congress may provide for the applicability of customary laws governing property
rights or relations in determining the ownership and extent of ancestral
domain.”
[73] Section 16 of the Indigenous Peoples’ Rights Act of 1997 (RA No. 8371) provides: “Right to Participate in Decision-Making. — ICCs/IPs have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through procedures determined by them as well as to maintain and develop their own indigenous political structures. Consequently, the State shall ensure that the ICCs/IPs shall be given mandatory representation in policy-making bodies and other local legislative councils.” (Emphasis supplied)
[74] See note 70;
[75] Adopted overwhelmingly by the United Nations General Assembly by a vote of 143-5 on 13 September 2007. Those who voted against were the United States, Canada, Australia and New Zealand.
[76] Section 10, Article X of the Constitution provides: “No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.” (Emphasis supplied)
[77] Justice Vicente V. Mendoza (ret.), The Legal Significance of the MOA on the Bangsamoro Ancestral Domain, lecture delivered at the College of Law, University of the Philippines on 5 September 2008.
[78] Paragraph 4 on Resources of the MOA-AD; see note 18.
[79] See note 77.
[80] Article 27 of the 1969 Vienna Convention on the Law of Treaties provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
[81] The initialing of the MOA-AD did not bind the GRP to the MOA-AD. The initialing was merely intended by the parties to authenticate the text of the MOA-AD. Article 12, 2(a) of the 1969 Vienna Convention on the Law of Treaties states that “the initialing of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed.”
[82] The Malaysia Foreign Minister, the Special Adviser to the Malaysian Prime Minister, and the Secretary of Foreign Affairs of the Philippines are witnesses to the MOA-AD.
[83] The Philippines, as a member of the United Nations, is ipso facto a party to the Statute of the International Court of Justice (Article 93[1], United Nations Charter). The Philippines signed on 18 January 1972 the Declaration Recognizing the Jurisdiction of the ICJ as Compulsory. At least 10 members of the Organization of Islamic Conference have also signed the Declaration.
[84] Article
36(6) of the Statute of the ICJ provides: “In
the event of a dispute as to whether the Court has jurisdiction, the matter
shall be settled by the decision of the Court.”
[85] Article
93(2) of the Charter of the United Nations provides: “A state which is not a
Member of the United Nations may become a party to the Statute of the
International Court of Justice on conditions to be determined in each case by
the General Assembly upon the recommendation of the Security Council.”
[86] Article
36(2) of the Statute of the International Court of Justice provides:
ARTICLE
36
1. x x x
2. The states parties to the
present Statute may at any time declare that they recognize as compulsory ipso
facto and without special agreement, in relation to any other state accepting
the same obligation, the jurisdiction of the Court in all legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if
established, would constitute a breach of an international obligation;
d. the nature or extent of the reparation to
be made for the breach of an international obligation.
[87] Article 34(1) of the Statute of the ICJ provides: “Only states may be parties in cases before the Court.”
[88]
See note 18.
[89]
Memorandum
of Respondents dated 24 September 2008, p. 7.
[90]
People
v. Vera, G.R. No. 26539, 28 February 1990, 182 SCRA 800, 809.
[91]
[92] The President’s Memorandum of Instructions dated 8 September 2003 reiterated verbatim paragraph 1 of the Memorandum of Instructions from the President dated 1 March 2001.
[93] Paragraph 4 on Concepts and Principles of the MOA-AD provides: “Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense. As a domestic community distinct from the rest of the national communities, they have a definite historic homeland. They are the “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations. The Parties concede that the ultimate objective of entrenching the Bangsamoro homeland as a territorial space is to secure their identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as distinct dominant people.” (Emphasis supplied)
[94] See Story of the Assembly of First Nations, http://www.afn.ca/article.asp?id=59.
[95]
[96] Paragraphs 1 and 3 on Concepts and Principles of the MOA-AD; see notes 49 and 50; Paragraph 1 on Territory of the MOA-AD provides: “The Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. However, delimitations are contained in the agreed Schedules (Categories).”
[97] Paragraph 7 on Concepts and Principles of the MOA-AD provides: “Vested property rights upon the entrenchment of the BJE shall be recognized and respected subject to paragraph 9 of the strand on Resources.”
[98] Paragraph 7 on Resources of the MOA-AD provides: “The legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, the GRP shall take effective measures or adequate reparation collectively beneficial to the Bangsamoro people, in such quality, quantity and status to be determined mutually by both Parties.” (Emphasis supplied)
[99]
[100] Paragraph 2(c)
on Territory of the MOA-AD provides: “The Parties affirm that the core of the
BJE shall constitute the present geographic area of the ARMM, including the
municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the
province of Lanao del Norte that voted for inclusion in the ARMM during the
2001 plebiscite.”
[101] Paul Collier calls internal armed conflicts “development in reverse.” Development and Conflict, Centre for the Study of African Economies, Department of Economics, Oxford University, 1 October 2004.