7. Prov of North Cotabato

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The Province of North Cotabato v The Government of the Republic of the Philippines Peace Panel on

Ancestral Domain (GRP) G.R. No. 183591, October 14, 2008 Apr 2, '09 1:48 AM

for everyone

Category: Other

Facts:

A long process of negotiation and the concluding of several prior agreements between the Government

of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) took place before

the Memorandum of Agreement on the Ancestral Domain (MOA-AD) come into existence. The GRP and

MILF Peace Panels signed the Agreement on General Cessation of Hostilities and the General Framework

of Agreement of Intent in 1997 and 1998, respectively.

However, as evidenced by early experiences, there was no any smooth sailing peace process between

the GRP and The MILF. A number of municipalities in Central Mindanao were attacked by the MILF from

1999 up to early 2000, and they took control of the town hall of Kauswagan, Lanao del Norte in March

2000, which caused the declaration of an all-out-war against the MILF by then President Joseph

Estrada.

The military offensive against the MILF was suspended and the government sought a resumption of the

peace talks when President Gloria Macapagal-Arroyo assumed office. Thus, in 2001, the parties signed

the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the

MILF. Thereafter, the MILF suspended all its military actions. It was followed by formal peace talks

between the parties which were held in Tripoli, Libaya in 2001, the outcome of which was the GRP-MILF

Tripoli Agreement on Peace (Tripoli Agreement 2001). Said agreement contained the basic principles

and agenda on the security, rehabilitation, and ancestral domain aspects of negotiation. A second round

of peace talks was conducted which resulted in the signing of the Implementing Guidelines on the

Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties. Still,

there were many incidence of violence between the government forces and the MILF. Several

exploratory talks followed leading to the crafting of the draft of MOA-AD in its final form, which was

scheduled to be signed on August 5, 2008.

The parties in said MOA-AD are the GRP and the MILF. Its Terms of Reference (TOR) includes not only

earlier agreements between the GRP and the MILF, but also agreements between the GRP and the

MNLF. It also identifies as TOR two local statutes the organic act for the Autonomous Region in Muslim

Mindanao (ARMM) and the Indigenous Peoples Rights Act (IPRA). Furthermore, it includes as a final TOR

the generic category of compact rights entrenchment emanating from the regime of dar-ul-muahada


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(or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the

nature of a treaty device.

The MOA-AD defines the Bangsamoro people as the 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 blood, including their spouses. It further proceeds to

refer to the Bangsamoro homeland, the ownership of which is vested exclusively in the Bangsamoro

people by virtue of their prior rights of occupation. The MOA-AD mentions the Bangsamoro Juridical

Entity (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral

Lands of the Bangsamoro.

The MOA-AD provides the BJE is free to enter into any economic cooperation and trade relations with

foreign countries and shall have the option to establish trade missions in those countries. The externaldefense of the BJE is to remain the duty and obligation of the Central Government, which has the

further duty to take necessary steps to ensure the BJEs participation in international meetings and

events.

Moreover, the MOA-AD binds the parties to invite a multinational third-party to observe and monitor

the implementation of the Comprehensive Compact, which embodies the details for the effective

enforcement and the mechanisms and modalities for the actual implementation of the MOA-AD. The

relationship between the Central Government and BJE is described as associative, characterized by

shared authority and responsibility, under the MOA-AD. The BJE under the MOA-AD is also granted the

power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial

and banking, education, legislation, legal, economic, police and internal security force, judicial system

and correctional institutions.

However, several petitions have been filed by different interested parties praying that the MOA-AD be

declared unconstitutional. Thus, the Supreme Court issued a Temporary Restraining Order (TRO)

enjoining the GRP from signing the same.

Issue:

1. Did respondents violate constitutional and statutory provisions on public consultation and the

right to information when they negotiated and later initialled the MOA-AD?


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2. Do the contents of the MOA-AD violate the Constitution and the laws?

Held:

1. YES. Respondents violate the constitutional and statutory provisions on public consultation and

the right to information when they negotiated and later initalled the MOA-AD.

Access to public records is predicated on the right of the people to acquire information on matters of

public concern since, undoubtedly, in a democracy; the public has a legitimate interest in matters of

social and political significance. The incorporation of this right in the Constitution is recognition of the

fundamental role of free exchange of information in a democracy. There can be no realistic perception

by the public of the nations problems or a meaningful democratic decision-making if they are denied

access to information of general interest. Information is needed to enable the members of society to

cope with the exigencies of the times.

It also aids the people in democratic decision-making by giving them a better perspective of the vital

issues confronting the nation so that they may be able to criticize and participate in the affairs of the

government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and

uninhibited exchange of ideas among a well-informed public that a government remains responsive to

the changes desired by the people.

The MOA-AD is a matter of public concern for it involves the sovereignty and territorial integrity of the

State, which directly affects the lives of the public at large. Matters of public concern covered by the

right to information include steps and negotiations leading to the consummation of the contract

because requiring a consummated contract will keep the public in the dark until the contract, which may

be grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the

State policy of full transparency on matters of public concern, a situation which the framers of the

Constitution could not have intended. Such a requirement will prevent the citizenry from participating in

the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of

Rights.

One of the three underlying principles of the comprehensive peace process is that it should be

community-based, reflecting the sentiments, values and principles important to all Filipinos and shall

be defined not by the government alone, nor by the different contending groups only, but by all Filipinos

as one community. Included as a component of the comprehensive peace process is consensus-building


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and empowerment for peace, which includes continuing consultations on both national and local levels

to build consensus for a peace agenda and process, and the mobilization and facilitation of peoples

participation in the peace process? Furthermore, E.O. No. 3 contemplates not just the conduct of a

plebiscite to effectuate continuing consultations, contrary to respondents position that plebiscite is

more than sufficient consultation. It establishes petitioners right to be consulted on the peace

agenda, as a corollary to the constitutional right to information and disclosure.

2. YES. The contents of the MOA-AD are unconstitutional.

The MOA-AD explicitly alludes the concept of association, indicating that the Parties actually framed its

provisions with it in mind. An association is formed when two states of unequal power voluntarily

establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to

the other, the principal, while maintaining its international status as a state. Free associations represent

a middle ground between integration and independence.

The MOA-AD contains many provisions which are consistent with the international legal concept of

association, specifically the following: the BJEs capacity to enter into economic and trade relations with

foreign countries, the commitment of the Central Government to ensure the BJEs participation in

meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of

the Central Government over external defense. These provisions of the MOA indicate, among other

things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status

closely approximating it.

This concept of association is not recognized under the present Constitution for no province, city or

municipality, not even the ARMM, is recognized under our laws as having an associative relationship

with the national government. Indeed, the concept implies powers that go beyond anything ever

granted by the Constitution to any local or regional government. It also implies the recognition of the

associated entity as a state. The Constitution, however, does not contemplate any state in this

jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to

prepare any part of Philippine territory for independence.

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. It is

not merely an expanded version of the ARMM, the status of its relationship with the national

government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name

as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent

population, a defined territory, a government, and a capacity to enter into relations with other states.


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Moreover, it virtually guarantees that the necessary amendments to the Constitution and the laws will

eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make

such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent

powers vested only in Congress, a Constitutional Convention, or the people themselves through theprocess of initiative, for the only way that the Executive can ensure the outcome of the amendment

process is through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding

on the Philippines under international law, respondents act of guaranteeing amendments is, by itself,

already a constitutional violation that renders the MOA-AD fatally defective.

Decision: The MOA-AD is declared contrary to law and the Constitution.

Documents

7. Prov of North Cotabato