EN BANC

G.R. Nos. 183591, 183752, 183893, 183951 & 183962 (The Province of North Cotabato, duly represented by Gov. Jesus Sacdalan and/or Vice-Gov. Emmanuel Piñol, for and in his own behalf, petitioners, v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), represented by Sec. Rodolfo Garcia, Atty. Leah Armamento, Atty. Sedfrey Candelaria, Mark Ryan Sullivan and/or Gen. Hermogenes Esperon, Jr., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents.)

Promulgated:

October 14, 2008

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SEPARATE OPINION

REYES, R.T., J.:

Nemo dat quod non habet. You cannot give what you do not have. Hindi mo maibibigay ang hindi sa iyo.

This maxim forcefully applies in these consolidated petitions and petitions-in-intervention for mandamus and prohibition which in the main seek the nullification of the Memorandum of Agreement on Ancestral Domain (MOA-AD) entered into between the Government of the Republic of the Philippines (GRP Panel) and the Moro Islamic Liberation Front (MILF).

The issues may be compressed as follows: (1) whether the petitions and petitions-in-intervention have become moot due to supervening events; and (2) whether the MOA-AD is constitutional.

I. The petitions and petitions-in-intervention have become moot due to supervening events. However, they should be decided given the exceptional circumstances, following well known precedents.

During the August 29, 2008 oral arguments before the Court, the Solicitor General manifested that the MOA-AD will not be signed “in its present form or in any other form.”[1] The August 28, 2008 memorandum of the Executive Secretary also says that “the government will not sign” the MOA-AD.[2] Due to these statements, the petitions and petitions-in-intervention have clearly become moot.

Be that as it may, the Court is not precluded from passing judgment on them. It is hornbook doctrine that courts will decide cases, otherwise moot, when (1) there is a grave violation of the Constitution; (2) the exceptional character of the situation and the paramount public interest involved demand; (3) the constitutional 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.[3]

Let me cite a few examples.

In Javier v. Commission on Elections,[4] petitioner Evelio B. Javier was assassinated on February 11, 1986 before his petition to the Court could be decided. In his petition, Javier argued that the proclamation of his rival, Arturo F. Pacificador, was void because it was made only by a division and not by the Commission on Elections en banc as required by the 1973 Constitution. The new Solicitor General moved for the dismissal of the petition on the ground of mootness in view of supervening events. The Court refused, saying:

The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent – both of whom have gone their separate ways – could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic.

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in the quest of law but we must also give him justice. The two are not always the same. There are times we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint on the future.[5] (Emphasis supplied)

In Salonga v. Cruz-Paño,[6] the Court had already deliberated on the case, a consensus on the judgment of the Court had been reached, and a draft ponencia was circulating for concurrences and separate opinions, if any. However, on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against petitioner. In accordance with the instructions of the Minister of Justice, the prosecution reevaluated its evidence and decided the exclusion of petitioner as one of the accused in the information filed under the questioned resolution.

However, this did not prevent the Court from deciding the merits of the petition. In doing so, the Court reasoned that “[t]he setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court’s function.” It “also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees.”[7] Similarly, Dela Camara v. Enage,[8] Gonzales v. Marcos,[9] and Aquino, Jr., v. Enrile[10] were decided under the same aegis.

In David v. Macapagal-Arroyo,[11] the Solicitor General moved for the dismissal of the consolidated petitions on the ground of mootness. It was argued that because the President had already lifted her declaration of state of national emergency, there was no longer an actual case or controversy. The Court was not convinced, saying that “[t]he “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case.”[12] It then proceeded to declare unconstitutional major parts of the declaration of state of national emergency by the President.

Just recently, in Manalo v. Calderon,[13] “[n]otwithstanding the mootness of the issues on restrictive custody and monitoring of movements of petitioners,” the Court opted to resolve the petition for habeas corpus, due to “(a) the paramount public interest involved, (b) their susceptibility of recurring yet evading review, and (c) the imperative need to educate the police community on the matter.”

The petitions and petitions-in-intervention call for a similar or analogous treatment by the court, due to their transcendental importance and in the national interest.

II. The MOA-AD is unconstitutional.

The GRP Panel went beyond their marching orders from the President.

The March 1, 2001 Memorandum of Instructions from the President,[14] which prescribes the guidelines for the GRP Panel in negotiating with the MILF, partly states:

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 the principled and peace 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 GRP and the MNLF on 02 September 1996; and

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)

In an apparent compliance with the Directive of the President, the MOA-AD mentions the following documents as terms of reference, to wit:

1. The Agreement for General Cessation of Hostilities dated July 18, 1997 Between the GRP and the MILF, and its Implementing Administrative and Operational Guidelines;

2. The General Framework of Agreement of Intent Between the GRP and the MILF dated August 27, 1998;

3. The Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF dated March 24, 2001;

4. The Tripoli Agreement on Peace Between the GRP and the MILF dated June 22, 2001;

5. The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996;

6. Republic Act No. 6734, as amended by R.A. 9054, otherwise known as “An Act to Strengthen and Expand the Autonomous Region in Muslim Mindanao (ARMM)”;

7. 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; and

8. Compact rights entrenchment emanating from the regime of dar-ul-mua’hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device. For the purpose of this Agreement, a “treaty” is defined as any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement.

Curiously missing in the enumeration, however, is the Constitution. The omission could only mean that the parties intended the MOA-AD not to be bound by the fundamental law. The Constitution is supposed to be the one to conform to the MOA-AD, and not the other way around.[15]

There can be no doubt as to the marching orders by the President. In negotiating with the MILF, the GRP Panel should use the Constitution as the parameter. Too, the preservation of the territorial integrity of the Republic of the Philippines should be maintained at all times. The GRP Panel, however, appears to have failed to follow those instructions.

The commitment of the GRP Panel to the MILF to change the Constitution to conform to the MOA-AD violates the doctrine of separation of powers.

Under the present constitutional scheme, the President is a mere bystander as far as the process of constitutional amendment or revision is concerned. The President is deprived of any participation because the Constitution[16] only allows three political agents, namely: (1) the Congress, upon a vote of three-fourths of all its members; (2) a constitutional convention;[17] and (3) the people through initiative upon a petition of at least twelve (12) per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of its registered voters.

Thus, since the President is bereft of any power in effecting constitutional change, the GRP Panel, who acts under the imprimatur of the President, cannot commit to the MILF that the Constitution will be amended or revised in order to suit the MOA-AD. That would be a violation of the doctrine of separation of powers. Nemo potest facere per alium quod non potest facere per directum. No one is allowed to do indirectly what he is prohibited to do directly. Sinuman ay hindi pinapayagan na gawin nang di tuwiran ang ipinagbabawal na gawin nang tuwiran.

The MOA-AD contains numerous provisions that appear unconstitutional.

Respondents claim that the contents of the MOA-AD are mere concession points for further negotiations. The MILF, however, publicly announced that the MOA-AD is already a “done deal” and its signing a mere formality.[18]

I find both claims of respondents and the MILF difficult to swallow. Neither position is acceptable. The GRP Panel has not presented any proof to buttress its point that, indeed, the parties intended the MOA-AD to be mere concession points for further negotiations. The MILF have not also shown proof to support its claim. In this regard, the MOA-AD should be interpreted according to its face value.

Having said that, let me point out the defects of the MOA-AD.

First. The MOA-AD creates a new political subdivision, the so-called Bangsamoro Juridical Entity (BJE). This is not permitted by the Constitution, which limits the political subdivisions of the Republic of the Philippines into provinces, cities, municipalities, barangays and autonomous regions.[19]

Worse, the BJE also trenches on the national sovereignty and territorial integrity of the Republic of the Philippines.[20] This is so because pursuant to the MOA-AD: (1) The Bangsamoro homeland and historic territory is clearly demarcated;[21] (2) The BJE is given the authority and jurisdiction over the Ancestral Domain and Ancestral lands. This includes both alienable and non-alienable lands encompassed within their homeland and ancestral territory,[22] specified “internal waters”[23] as well as “territorial waters”;[24] (3) The declared 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 a distinct dominant people. The Parties respect the freedom of choice of the indigenous peoples;”[25] and (4) The BJE is 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, x x x.”[26] Otherwise stated, respondents agreed to create a BJE out of the national territory of the Republic, with a distinct and separate system of government from the Republic of the Philippines.[27]

Notably, the United Nations Declaration on the Rights of Indigenous Peoples, while recognizing the rights of indigenous peoples to self-determination, does not give them the right to undermine the territorial integrity of a State.[28]

Second. The creation of the BJE is prohibited even assuming that the MOA-AD only attempts to create the BJE as an autonomous region. Only Congress is empowered to create an autonomous region.[29]

In fact, RA Nos. 6734[30] and 9054,[31] the laws creating and expanding the ARMM, have already been passed by Congress. As a result of these Organic Acts, the provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi and the City of Marawi voted to comprise the ARMM territory under the control of the Regional Government of the ARMM. In the case of the MOA-AD, no implementing law is provided to implement its terms. What it purports to do, instead, is to provide for structures of government within the MOA-AD itself. It also obligates the GRP Panel to “conduct and deliver” a plebiscite “within twelve (12) months following the signing of the MOA-AD.”[32]

Third. The MOA-AD creates the Bangsamoro Homeland as an ancestral domain. However, there is non-compliance with the procedure laid down under RA No. 8371, otherwise known as the Indigenous Peoples Rights Act (IPRA). True, Article II, Section 22 of the 1987 Constitution recognizes the rights of all indigenous peoples.[33] This, however, cannot be used in the MOA-AD as a blanket authority to claim, without sufficient proof, a territory spanning an entire geographical region, the entire Mindanao-Sulu-Palawan geographic region.[34]

Indeed, Chapter VIII of the IPRA provides for stringent requirements and strict process of delineation for recognition of ancestral domains, thus:

SEC. 51. Delineation and Recognition of Ancestral Domains. – Self‑delineation shall be the guiding principle in the identification and delineation of ancestral domains. As such, the ICCs/IPs concerned shall have a decisive role in all the activities pertinent thereto. The Sworn Statement of the Elders as to the scope of the territories and agreements/pacts made with neighboring ICCs/IPs, if any, will be essential to the determination of these traditional territories. The Government shall take the necessary steps to identify lands which the ICCs/IPs concerned traditionally occupy and guarantee effective protection of their rights of ownership and possession thereto. Measures shall be taken in appropriate cases to safeguard the right of the ICCs/IPs concerned to land which they may no longer be exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities, particularly of ICCs/IPs who are still nomadic and/or shifting cultivators.

SEC. 52. Delineation Process. – The identification and delineation of ancestral domains shall be done in accordance with the following procedures:

x x x x

(b) Petition for Delineation. – The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or though a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs.

(c) Delineation Proper. – The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and participation by the members of the communities concerned.

(d) Proof Required. – Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

(e) Preparation of Maps. – On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein.

(f) Report of Investigation and Other Documents. – A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP.

(g) Notice and Publication. – A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen days (15) from date of such publication: Provided, That in areas where no such newspaper exist, broadcasting in a radio station will be a valid substitute; Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available.

(h) Endorsement to NCIP. – Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence; Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP. Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the Section below.

The MOA-AD is problematic when read in conjunction with the IPRA because it does not present any proof or specific reference that all the territories it enumerates accurately represent the “ancestral domains” of the Bangsamoro Homeland. The MOA-AD assumes that these territories are included in the Bangsamoro Homeland as ancestral domains, without proof or identification of native title or other claim of ownership to all the affected areas.

Section 3(g) of the IPRA[35] also requires that there be a “free and informed prior consent” by the indigenous peoples concerned to be exercised through consultations before any decision relating to their ancestral domain is made. This rule not only guarantees the right to information[36] of the people in these areas, but also the right of the indigenous peoples to “free and informed prior consent” as an element of due process.[37] Obviously, respondents did not conduct the required consultation before negotiating the terms of the MOA-AD. Otherwise, no petitions and petitions-in-intervention would have been filed in the first place.

Fourth. Under the MOA-AD, the BJE is vested with jurisdiction, powers and authority over land use, development, utilization, disposition and exploitation of natural resources within the Bangsamoro Homeland.[38] In doing so, respondents in effect surrendered to the BJE ownership and gave it full control and supervision over the exploration, development, utilization over the natural resources which belong to the State. This is in clear contravention of the Regalian Doctrine now expressed under Article XII, Section 2 of the 1987 Constitution, thus:

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.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

Fifth. The MOA-AD also grants to the BJE powers to enter into any economic cooperation and trade relations with foreign countries. It compels the Republic of the Philippines to ensure the BJE’s participation in international meetings and events, participation in Philippine official missions and delegations engaged in the negotiation of, among others, border agreements, sharing of incomes and revenues.[39] Thus, by assenting to install an intra sovereign political subdivision independent of the single sovereign state that is the Republic of the Philippines, respondents violated not only the Constitution, Article V, Section 2 of RA No. 6734,[40] but also the unitary system of government of the Republic of the Philippines.

Sixth. Article 1, Section 1 of the 1987 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.

Without the benefit of any factual determination, the MOA-AD dismembers parts of Mindanao, turning it into a geographical dalmatian. It creates a Bangsamoro Homeland with a specified land mass, maritime, terrestrial, fluvial and alluvial dominions, (with definite internal[41] and territorial[42] waters), aerial domain, atmospheric space,[43] and even distinct “territorial waters” within the RP baselines.[44]

Seventh. The MOA-AD grants to the BJE plenary power to undo executive acts and delegate to the BJE the authority to revoke existing proclamations, issuances, policies, rules and guidelines, forest concessions, timber licenses, contracts or agreements in the utilization of natural resources, mining concessions, land tenure instruments.[45] This constitutes an undue delegation of executive power. The President may delegate its executive power only to local government units or an administrative body attached to the executive department.[46] The delegation of power to the BJE, on the other hand, is delegation of executive power to an entirely different juridical entity that is not under its supervision or control. That is impermissible.

Eighth. The MOA-AD empowers the BJE to build, develop, and maintain its own institutions. This includes civil service, electoral, financial and banking institutions, education, legislation, legal, economic, police, internal security force, and judicial system.[47] This is anathema to several provisions of the Constitution, namely: (1) the authority of the Commission on Elections to administer all election laws in the Philippines;[48] (2) that there shall only be one police force, national in scope to be administered and controlled by the National Police Commission;[49] (3) that the defense of the Republic shall belong exclusively to the Armed Forces of the Philippines;[50] (4) that judicial power shall be vested in one Supreme Court and in such other inferior courts as may be established by law;[51] (5) that there shall only be one independent central monetary authority, the Bangko Sentral ng Pilipinas;[52] and (6) that there shall be one independent economic planning agency.[53]

All told, respondents appear to have committed grave abuse

abuse of discretion in negotiating and initialing the MOA-AD.

Grave abuse of discretion has been traditionally understood as

implying such capricious and whimsical exercise of judgment

as is equivalent to lack of jurisdiction, or, in other words where

the power is exercised in an arbitrary or despotic manner.[54] The definition has been expanded because now, grave abuse of discretion exists when there is a contravention of the Constitution, the law and jurisprudence.[55]

Negotiate within the Constitutional bounds

During the American Civil War, the Union had to win the Confederates and bring them back to the fold. It was the bloodiest war the United States ever had. But what made the war most pathetic is that it was fought by countrymen, people who called themselves brothers. With the recent hostilities in the South, I hope the day will not come for a full-scale civil war in this land we all proudly call Home. It is our solemn duty to avert that war.

The aborted MOA-AD is a setback to the government. But the setback is only temporary, not a permanent one. The path to peace is long. But it can be travelled. On one hand, the government should be commended in its effort to bring lasting peace to the South. On the other hand, it needs to be reminded that any negotiation it enters into, even in the name of peace, should be within the parameters of the Constitution.

WHERFORE, I vote to GRANT the petitions and petitions-in-intervention and to strike down the MOA-AD as UNCONSTITUTIONAL.

RUBEN T. REYES

Associate Justice

---

[1] TSN, August 29, 2008, p. 14. “The Executive Department has decided and [is] stating for the record that the MOA-AD will not be signed in its present form or in any other form.”

[2] Annex “A”; Compliance of the Office of the Solicitor General September 1, 2008.

“The MOA that was originally presented was a step in crafting a final peace agreement. By design, any MOA as part of a final peace agreement undergo a thorough review as part of our constitutional processes since the MOAs will be part of the enabling law by Congress and a plebiscite to implement the entire agreement. The action by the Supreme Court is consistent with that process. Moving forward, we are committed to securing an agreement that is both constitutional and equitable because that is the only way that long lasting peace can be assured.

“No matter what the Supreme Court ultimately decides the government will not sign the MOA. In light of the recent violent incidents committed by MILF Lawless Goups, the President has refocused all peace talks from one that is centered on dialogues with rebels to one authentic dialogues with the communities, with DDR as the context of our engagements with all armed groups.” (Emphasis supplied)

[3] Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756; Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736; Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577; Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 277 SCRA 409.

[4] G.R. Nos. L-68379-81, September 22, 1986, 144 SCRA 194.

[5] Javier v. Commission on Elections, id. at 197-198.

[6] G.R. No. L-59524, February 18, 1985, 134 SCRA 438.

[7] Salonga v. Cruz-Paño, id. at 463. (Emphasis supplied.)

[8] G.R. No. L-32951-2, September 17, 1971, 41 SCRA 1.

[9] G.R. No. L-31685, July 31, 1975, 65 SCRA 624.

[10] G.R. No. L-35546, September 17, 1974, 59 SCRA 183.

[11] G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3, 2006, 489 SCRA 160.

[12] David v. Macapagal-Arroyo, id. at 214. (Emphasis supplied.)

[13] G.R. No. 178920, October 15, 2007.

[14] Paragraph 1 of the Memorandum of Instructions from the President dated March 1, 2001 is reiterated in toto in the Memorandum of Instructions from the President dated September 8, 2003. Respondent Esperon admitted this when he stated during the oral arguments that “indeed the Memorandum of Instructions was issued on 1 March 2001 to the Presidential Adviser, to the Chairman of the Peace Negotiating Panel thru the Presidential Adviser on the Peace Process. And since then, it has also been revised on September 8, 2003 containing the same paragraph one which reads that the negotiation shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the Principles of Sovereignty and Territorial Integrity of the Republic of the Philippines.” (TSN, August 15, 2008, pp. 342-343).

[15] Noteworthy is the statement of Al Haj Murad Ebrahim, the Chairman of the MILF, thus: “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. <http://222.abs-cbnnews.com/topofthehour.aspx? StoryId=128834> (visited September 25, 2008). (Emphasis supplied)

[16] Constitution (1987), Art. XVII, Sec. 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.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Sec. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

Sec. 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.

Any amendment under Section 2 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 certification by the Commission on Elections of the sufficiency of the petition.

[17] Constitution (1987), Art. XVII, Sec. 3. “The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.”

[18] <http:// www.tribune. net.ph/headlines/20080806hed2.html

> (visited September 27, 2008).

[19] Constitution (1987), 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.”

[20] Id., Sec. 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.”

[21] MOA-AD, Territory, par. 1. “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. x x x.”

[22] Id., Concepts and Principles, par. 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 domain/lands of the Bangsamoro people located therein.”

[23] Id., Territory, par. 2(f). “The BJE shall have jurisdiction over the management, conservation, development, protection, utilization and disposition of all natural resources, living and non-living, within its internal waters extending fifteen (15) kilometers from the coastline of the BJE area.”

[24] Id., Territory, par. 2(g). “(1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to the Republic of the Philippines (RP) baselines south east and south west of mainland Mindanao. Beyond the fifteen (15) kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and all natural resources, living and non-living contained therein. The details of such management of the Territorial Waters shall be provided in an agreement to be entered into by the Parties.

“(2) The boundaries of the territorial waters shall stretch beyond the 15-km. BJE internal waters up to the Central Government’s baselines under existing laws. In the southern and eastern part of the BJE, it shall be demarcated by a line drawn from the Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of the Philippines. On the northwestern part, it shall be demarcated by a line drawn from Little Sta. Cruz Island, Zamboanga City, up to Naris Point, Bataraza, Palawan. On the western part of Palawan, it shall be demarcated by a line drawn from the boundary of Bataraza and Rizal up to the straight baselines of the Philippines.

“The final demarcation shall be determined by a joint technical body composed of duly-designated representatives of both Parties, in coordination with the appropriate Central Government agency in accordance with the above guidelines.”

[25] Id., Governance, par. 2.

[26] Id., par. 8.

[27] Id., Concepts and Principles, par. 4. “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 a distinct dominant people.

[28] United Nations Declaration on the Rights of Indigenous Peoples, 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 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)

[29] Constitution (1987), Art. X, Sec. 18. “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 multi-sectoral 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.”

[30] Passed on August 1, 1989. “An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao.”

[31] Passed on March 31, 2001. “An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act 7634, Entitled “An Act Providing for the Autonomous Region in Muslim Mindanao, As Amended.”

[32] MOA, Territory, par. 2(d). “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 as enumerated in the list and depicted in the map as Category A attached herein (the “Annex”). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavour to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.”

[33] “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.”

[34] MOA-AD, Concepts and Principles, par. 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.”

Id., par. 3. “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.”

[35] IPRA, Sec. 3(g). “Free and Prior Informed Consent - as used in this Act shall mean the consensus of all members of the ICCs/IPs to; be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of the activity, in a language an process understandable to the community.”

[36] Constitution (1987), Art. 3, 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.”

[37] Id., Sec. 1. “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”

[38] MOA-AD, Resources, par. (1). “The BJE is empowered with authority and responsibility for the land use, development, conservation and disposition of the natural resources within the homeland. Upon entrenchment of the BJE, the land tenure and use of such resources and wealth must reinforce their economic self-sufficiency. Among the purposes or measures to make progress more rapid are:

a. Entry into joint development, utilization, and exploitation of natural resources designed as commons or shared resources, which is tied up to the full setting of appropriate institution, particularly affecting strategic minerals;

b. Stimulation of local economy by a range of mechanism, in particular the need to address unemployment and improvement of living conditions for the population in the BJE;

c. Intensification of measures needed to uproot the cause of poverty in the BJE through responsible harnessing and development of its natural resources; and

d. Undertaking program review of public services, industrial or trade-related and agrarian-related issues in situations of different sectors of the society in the BJE, which acquire communal character deriving from the special nature of their industry.

Id., par. 2. “The Bangsamoro People through their appropriate juridical entity shall, among others, exercise power or authority over the natural resources within its territorial jurisdiction:

a. To explore, exploit, use or utilize and develop their ancestral domain and ancestral lands within their territorial jurisdiction, inclusive of their right of occupation, possession, conservation, and exploitation of all natural resources found therein;

b. To conserve and protect the human and natural environment for their sustainable and beneficial enjoyment and their posterity;

c. To utilize, develop, and exploit its natural resources found in their ancestral domain or enter into a joint development, utilization, and exploitation of natural resources, specifically on strategic minerals, designed as commons or shared resources, which is tied up to the final setting of appropriate institution;

d. To revoke or grant forest concessions, timber license, contracts or agreements in the utilization and exploitation of natural resources designated as commons or shared resources, mechanisms for economic cooperation with respect to strategic minerals, falling within the territorial jurisdiction of the BJE;

e. To enact agrarian laws and programs suitable to the special circumstances of the Bangsamoro people prevailing in their ancestral lands within the established territorial boundaries of the Bangsamoro homeland and ancestral territory within the competence of the BJE; and

f. To use such natural resources and wealth to reinforce their economic self-sufficiency.

Id., par. 5. “Jurisdiction and control over, and the right of exploring for, exploiting, producing and obtaining all potential sources of energy, petroleum, in situ, fossil fuel, mineral oil and natural gas, whether onshore or offshore, is vested in the BJE as the party having control within its territorial jurisdiction, provided that in times of national emergency, when public interest so requires, the Central Government may, during the emergency, for a fixed period and under reasonable terms as may be agreed by both Parties, temporarily assume or direct the operations of such strategic resources.”

[39] MOA-AD, Resources, par. 4. “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.

[40] Republic Act No. 6734, Art. V, Sec. 2. The Autonomous Region is a corporate entity with jurisdiction in all matters devolved to it by the Constitution and this Organic Act as herein enumerated:

(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;

(9) Powers, functions and responsibilities now being exercised by the departments of the National Government except:

(a) Foreign affairs;

(b) National defense and security;

(c) Postal service;

(d) Coinage, and fiscal and monetary policies;

(e) Administration of justice;

(f) Quarantine;

(g) Customs and tariff;

(h) Citizenship;

(i) Naturalization, immigration and deportation;

(j) General auditing, civil service and elections;

(k) Foreign trade;

(l) Maritime, land and air transportation and communications that affect areas outside the Autonomous Region; and

(m) Patents, trademarks, trade names, and copyrights; and

(10) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the Region.

[41] MOA-AD, Territory, par. 2(f). “The BJE shall have jurisdiction over the management, conservation, development, protection, utilization and disposition of all natural resources, living and non-living, within its internal waters extending fifteen (15) kilometers from the coastline of the BJE area.”

[42] Id., par. 2(g). “

“(1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to the Republic of the Philippines (RP) baselines south east and south west of mainland Mindanao. Beyond the fifteen (15) kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and all natural resources, living and non-living contained therein. The details of such management of the Territorial Waters shall be provided in an agreement to be entered into by the Parties.

“(2) The boundaries of the territorial waters shall stretch beyond the 15-km. BJE internal waters up to the Central Government’s baselines under existing laws. In the southern and eastern part of the BJE, it shall be demarcated by a line drawn from the Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of the Philippines. On the northwestern part, it shall be demarcated by a line drawn from Little Sta. Cruz Island, Zamboanga City, up to Naris Point, Bataraza, Palawan. On the western part of Palawan, it shall be demarcated by a line drawn from the boundary of Bataraza and Rizal up to the straight baselines of the Philippines.

“The final demarcation shall be determined by a joint technical body composed of duly-designated representatives of both Parties, in coordination with the appropriate Central Government agency in accordance with the above guidelines ”

[43] Id., par. 1. “1. 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. x x x.”

[44] Id., par 2(g). “(1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to the Republic of the Philippines (RP) baselines south east and south west of mainland Mindanao. Beyond the fifteen (15) kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and all natural resources, living and non-living contained therein. The details of such management of the Territorial Waters shall be provided in an agreement to be entered into by the Parties.

“(2) The boundaries of the territorial waters shall stretch beyond the 15-km. BJE internal waters up to the Central Government’s baselines under existing laws. In the southern and eastern part of the BJE, it shall be demarcated by a line drawn from the Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of the Philippines. On the northwestern part, it shall be demarcated by a line drawn from Little Sta. Cruz Island, Zamboanga City, up to Naris Point, Bataraza, Palawan. On the western part of Palawan, it shall be demarcated by a line drawn from the boundary of Bataraza and Rizal up to the straight baselines of the Philippines.

“The final demarcation shall be determined by a joint technical body composed of duly-designated representatives of both Parties, in coordination with the appropriate Central Government agency in accordance with the above guidelines.”

[45] MOA-AD, Resources, pars. 8. “All proclamations, issuances, policies, rules and guidelines declaring old growth or natural forests and all watersheds within the BJE as forest reserves shall continue to remain in force until otherwise modified, revised or superseded by subsequent policies, rules and regulations issued by the competent authority under the BJE.

Id., par. 9. “Forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments of any kind or nature whatsoever granted by the Philippine Government including those issued by the present ARMM shall continue to operate from the date of formal entrenchment of the BJE unless otherwise expired, reviewed, modified and/or cancelled by the latter.”

[46] Nachura, Antonio B., Outline in Political Law, 2002 ed., p. 51.

[47] MOA, Governance, par. 8. “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.”

[48] Constitution (1987), Art. IX(C), Sec. 2 (1). “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.”

[49] Id., Art. XVI, Sec. 6. “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.”

[50] Id., Art. XVI, Sec. 4. “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.”

[51] Id., Art. VIII, Sec. 1. “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.”

[52] Id., Art. XII, Sec. 20. “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.”

[53] Id., Art. XII, Sec. 9. “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.”

[54] Esguerra v. Court of Appeals, G.R. No. 119310, February 3, 1997, 267 SCRA 380, citing Alafriz v. Noble, 72 Phil. 278, 280 (1941); Leung Ben v. O’Brien, 38 Phil. 182 (1918); Salvador Campos y Cia v. Del Rosario, 41 Phil. 45 (1920); Abad Santos v. Province of Tarlac, 38 Off. Gaz. 830; Tavera Luna, Inc. v. Nable, 38 Off. Gaz. 62; San Sebastian College v. Court of Appeals, G.R. No. 84401, May 15, 1991, 197 SCRA 138; Sinon v. Civil Service Commission, G.R. No. 101251, November 5, 1992, 215 SCRA 410; Bustamante v. Commission on Audit, G.R. No. 103309, November 27, 1992, 216 SCRA 134, 136; Zarate v. Olegario, G.R. No. 90655, October 7, 1996, 263 SCRA 1.

[55] G.R. Nos. 147062-64, December 14, 2001, 372 SCRA 462, 493.