Province of North Cotabato v. GRP

8/10/2019 Province of North Cotabato v. GRP

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EN BANC

THE PROVINCE OF NORTH COTABATO, dulyrepresented by GOVERNOR JESUS SACDALANand/or VICE-GOVERNOR EMMANUELPIOL, for and in his own behalf,Petitioners,

- versus -

THE GOVERNMENT OF THE REPUBLIC OFTHE PHILIPPINES PEACE PANEL ONANCESTRAL DOMAIN (GRP), represented bySEC. RODOLFO GARCIA, ATTY. LEAHARMAMENTO, ATTY. SEDFREYCANDELARIA, MARK RYAN SULLIVANand/or GEN. HERMOGENES ESPERON, JR.,the latter in his capacity as the present and duly-appointed Presidential Adviser on the PeaceProcess (OPAPP) or the so-called Office of thePresidential Adviser on the Peace Process,

Respondents.x--------------------------------------------xCITY GOVERNMENT OF ZAMBOANGA, asrepresented by HON. CELSO L. LOBREGAT,City Mayor of Zamboanga, and in his personalcapacity as resident of the City of Zamboanga,Rep. MA. ISABELLE G. CLIMACO, District 1,and Rep. ERICO BASILIO A. FABIAN, District2, City ofZamboanga,

Petitioners,

- versus -

G.R. No. 183591

Present:

PUNO, C.J., QUISUMBING,

YNARES-SANTIAGO,CARPIO,AUSTRIA-MARTINEZ,CORONA,CARPIO MORALES,AZCUNA,TINGA,CHICO-NAZARIO,VELASCO, JR., NACHURA,REYES,LEONARDO-DE CASTRO, &BRION, JJ .

Promulgated:

October 14, 2008

G.R. No. 183752


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CEDRIC L. ADRIATICO, HON.FELIXBERTOC. BOLANDO, HON. JOSEPH BRENDO C.AJERO, HON. NORBIDEIRI B. EDDING,HON. ANECITO S. DARUNDAY, HON.ANGELICA J. CARREON and HON.

LUZVIMINDA E. TORRINO, Petitioners,

- versus -

THE GOVERNMENT OF THE REPUBLIC OFTHE PHILIPPINES PEACE NEGOTIATINGPANEL [GRP], as represented by HON.RODOLFO C. GARCIA and HON.

HERMOGENES ESPERON, in his capacity as thePresidential Adviser of Peace Process, Respondents.

x--------------------------------------------xERNESTO M. MACEDA, JEJOMAR C. BINAY,and AQUILINO L. PIMENTEL III,

Petitioners,

- versus -

THE GOVERNMENT OF THE REPUBLIC OFTHE PHILIPPINES PEACE NEGOTIATINGPANEL, represented by its Chairman RODOLFOC. GARCIA, and the MORO ISLAMICLIBERATION FRONT PEACE NEGOTIATINGPANEL, represented by its ChairmanMOHAGHER IQBAL,

Respondents.x--------------------------------------------xFRANKLIN M. DRILON and ADEL ABBASTAMANO,

Petitioners-in-Intervention.x--------------------------------------------xSEN. MANUEL A. ROXAS,

Petitioners-in-Intervention.x--------------------------------------------xMUNICIPALITY OF LINAMON dulyrepresented by its Municipal Mayor NOEL N.

G.R. No. 183951


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DEANO, Petitioners-in-Intervention,

x--------------------------------------------xTHE CITY OF ISABELA,BASILAN PROVINCE,represented by MAYOR CHERRYLYN P.

SANTOS-AKBAR, Petitioners-in-Intervention.x--------------------------------------------xTHE PROVINCE OF SULTAN KUDARAT, rep.by HON. SUHARTO T. MANGUDADATU, in hiscapacity as Provincial Governor and a resident ofthe Province of Sultan Kudarat,

Petitioner-in-Intervention.x-------------------------------------------x

RUY ELIAS LOPEZ, for and in his own behalf

and on behalf of Indigenous Peoples in MindanaoNot Belonging to the MILF, Petitioner-in-Intervention.

x--------------------------------------------xCARLO B. GOMEZ, GERARDO S. DILIG,NESARIO G. AWAT, JOSELITO C. ALISUAGand RICHALEX G. JAGMIS, as citizens andresidents of Palawan,

Petitioners-in-Intervention.x--------------------------------------------xMARINO RIDAO and KISIN BUXANI,

Petitioners-in-Intervention.x--------------------------------------------xMUSLIM LEGAL ASSISTANCEFOUNDATION, INC (MUSLAF),

Respondent-in-Intervention.x--------------------------------------------xMUSLIM MULTI-SECTORAL MOVEMENTFOR PEACE & DEVELOPMENT (MMMPD),

Respondent-in-Intervention.x--------------------------------------------x

G.R. No. 183962

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D E C I S I O N

CARPIO MORALES, J. :

Subject of these consolidated cases is theextent of the powers of the President in pursuing the peace process. While the facts surrounding this controversy center on the arm


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conflict in Mindanao between the government and the Moro Islamic Liberation Front (MILFthe legal issue involved has a bearing on all areas in the country where there has been a lonstanding armed conflict. Yet again, the Court is tasked to perform a delicate balancing act. must uncompromisingly delineate the bounds within which the President may lawfully exerciher discretion, but it must do so in strict adherence to the Constitution, lest its ruling undul

restricts the freedom of action vested by that same Constitution in the Chief Executive preciseto enable her to pursue the peace process effectively.I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and thMILF, through the Chairpersons of their respective peace negotiating panels, were scheduled sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRMILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under th

leadership of the late Salamat Hashim, it splintered from the Moro National Liberation Fro(MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceiveto be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoiorientations.[1]

The signing of the MOA-AD between the GRP and the MILF was not to materializehowever, for upon motion of petitioners, specifically those who filed their cases before thscheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoininthe GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding oseveral prior agreements between the two parties beginning in 1996, when the GRP-MILF peanegotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreemeon General Cessation of Hostilities. The following year, they signed the General Framework Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by statinthat the same contained, among others, the commitment of the parties to pursue peacnegotiations, protect and respect human rights, negotiate with sincerity in the resolution an pacific settlement of the conflict, and refrain from the use of threat or force to attain unduadvantage while the peace negotiations on the substantive agenda are on-going.[2]

Early on, however, it was evident that there was not going to be any smooth sailing ithe GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attackednumber of municipalities in Central Mindanao and, in March 2000, it took control of the towhall of Kauswagan, Lanao del Norte.[3] In response, then President Joseph Estrada declared andcarried out an all-out-war against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive againsthe MILF was suspended and the government sought a resumption of the peace talks. Th
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MILF, according to a leading MILF member, initially responded with deep reservation, but whePresident Arroyo asked the Government of Malaysia through Prime Minister MahathMohammad to help convince the MILF to return to the negotiating table, the MILF convened Central Committee to seriously discuss the matter and, eventually, decided to meet witthe GRP.[4]

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated bthe Malaysian government, the parties signing on the same date the Agreement on the GenerFramework for the Resumption of Peace Talks Between the GRP and the MILF. The MILthereafter suspended all its military actions.[5]

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 200the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreemen2001) containing the basic principles and agenda on the following aspects of thenegotiation:Security Aspect,Rehabilitation Aspect, andAncestral Domain Aspect. Withregard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agree

that the same be discussed further by the Parties in their next meeting. A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7

2001 which ended with the signing of theImplementing Guidelines on the Security Aspect of thTripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed bthe Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects the Tripoli Agreement 2001, which was signed on May 7,2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence betweegovernment forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and hwas replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.Murads position as chief peace negotiator was taken over by Mohagher Iqbal.[6]

In 2005, several exploratory talks were held between the parties in Kuala Lumpureventually leading to the crafting of the draft MOA-AD in its final form, which, as mentionewas set to be signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious consensus ever embodied in aninstrument the MOA-AD which is assailed principally by the present petitions bearing dockenumbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain[7] andthe Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor Emmanuel Piol filed a petition, docketed asG.R. No. 183591, for Mandamus and Prohibition with Prayer for the
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Issuance of Writ of Preliminary Injunction and Temporary Restraining Order .[9] Invoking theright to information on matters of public concern, petitioners seek to compel respondents tdisclose and furnish them the complete and official copies of the MOA-AD including itattachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of thcontents of the MOA-AD and the holding of a public consultation thereon. Supplementaril

petitioners pray that the MOA-AD be declared unconstitutional.[10]

This initial petition was followed by another one, docketed asG.R. No. 183752, also for

Mandamus and Prohibition[11] filed by the City of Zamboanga,[12] Mayor Celso Lobregat, Rep.Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctivreliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from thBangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that thMOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commandinand directing public respondents and their agents to cease and desist from formally signing th

MOA-AD.[13]

The Court also required the Solicitor General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD,[14] to which she complied.[15]

Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Declaratory Relief,docketed asG.R. No. 183893, praying that respondents be enjoined from signing the MOA-ADor, if the same had already been signed, from implementing the same, and that the MOA-AD bdeclared unconstitutional. Petitioners herein additionally implead Executive Secretary EduardErmita as respondent.

The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, Vice-Governor FrancisOlvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the member s[18] ofthe Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition forCertiorari, Mandamus and Prohibition,[19] docketed asG.R. No. 183951. They pray,inter alia ,that the MOA-AD be declared null and void and without operative effect, and that responden be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petitiofor Prohibition,[20] docketed asG.R. No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-AD and any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for beinunconstitutional and illegal. Petitioners herein additionally implead as respondent the MILPeace Negotiating Panel represented by its Chairman Mohagher Iqbal.Various parties moved to intervene and were granted leave of court to file their petitions/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, formSenate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela[21] and MayorCherrylyn Santos-Akbar, the Province of Sultan Kudarat[22] and Gov. Suharto Mangudadatu, theMunicipality of Linamon in Lanao del Norte,[23] Ruy Elias Lopez of Davao City and of theBagobo tribe,Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito AlisuaRichalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Musla
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and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed therespective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondenfiled Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the ExecutivDepartment shall thoroughly review the MOA-AD and pursue further negotiations to address tissues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange o

pleadings, respondents motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the followi principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as themandamus aspect is concerned, in view of the disclosure of official copies ofthe final draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it isconsidered that consultation has become fait accompli with the finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel committegrave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated aninitiated the MOA vis--vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the peoples right to information on matters of public concern(1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactioinvolving public interest (1987 Constitution, Article II, Sec. 28) including public consultatiounder Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedureis an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would bBINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestrdomain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS AC


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OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the Governmeof the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of ZamboangIligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covere by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of thGovernment of the Republic of the Philippines.[24]

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of th parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD As a necessary backdrop to the consideration of the objections raised in the subject fiv

petitions and six petitions-in-intervention against the MOA-AD, as well as the two comments-iintervention in favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading Terms of Reference (TOR), the MOA -AD includes not only four earlieragreements between the GRP and MILF, but also two agreements between the GRP and thMNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of PresideFidel Ramos.

The MOA-AD also identifies as TOR two local statutes the organic act for theAutonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peoples Rights Act(IPRA),[26] and several international law instruments the ILO Convention No. 169 ConcerningIndigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on thRights of the Indigenous Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of compact rightsentrenchment emanating from the regime of dar-ul- muahada (or territory under compact)anddar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device.

During the height of the Muslim Empire, early Muslim jurists tended to see the worlthrough a simple dichotomy: there was thedar-ul-Islam (the Abode of Islam) anddar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway, whilthe second denoted those lands where Muslims were persecuted or where Muslim laws weoutlawed or ineffective.[27] This way of viewing the world, however, became more complex
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through the centuries as the Islamic world became part of the international community onations.

As Muslim States entered into treaties with their neighbors, even with distant States aninter-governmental organizations, the classical division of the world intodar-ul-Islam anddar-

ul-harb eventually lost its meaning. New terms were drawn up to describe novel ways o perceiving non-Muslim territories. For instance, areas likedar-ul- muahada (land of compact)anddar-ul-sulh (land of treaty) referred to countries which, though under a secular regimemaintained peaceful and cooperative relations with Muslim States, having been bound to eacother by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred tocountries which, though not bound by treaty with Muslim States, maintained freedom of religiofor Muslims.[28]

It thus appears that the compact rights entrenchment emanating from the regime of dar-ul-muahada anddar-ul-sulh simply refers to all other agreements between the MILF and thePhilippine government the Philippines being the land of compact and peace agreement that

partake of the nature of a treaty device,treaty being broadly defined as any solemn agreementin writing that sets out understandings, obligations, and benefits for both parties which providfor a framework that elaborates the principles declared in the [MOA-AD].[29]

The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED ASFOLLOWS, and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts andPrinciples, Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is the birthright of all Moros and allIndigenous peoples of Mindanaoto identify themselves and be accepted as Bangsamoros. Itdefines Bangsamoro people as the natives or original inhabitants ofMindanao and its adjacentislands including Palawan and the Sulu archipelagoat the time of conquest or colonization , andtheir descendants whether mixed or of full blood, including their spouses.[30]

Thus, the concept of Bangsamoro, as defined in this strand of the MOA -AD, includesnot only Moros as traditionally understood even by Muslims ,[31] butall indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that thfreedom of choice of indigenous peoples shall be respected. What this freedom of choicconsists in has not been specifically defined.

The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of whichis vested exclusively in the Bangsamoro people by virtue of their prior rights ofoccupation.[32] Both parties to the MOA-AD acknowledge that ancestral domain doesnot form part of the public domain.[33]
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The Bangsamoro people are acknowledged as having the right to self-governance, whicright is said to be rooted on ancestral territoriality exercised originally under the suzeraiauthority of their sultanates and the Pat a Pangampong ku Ranaw . The sultanates weredescribed as states or karajaan/kadatuan resembling a body politic endowed with all theelements of a nation-state in the modern sense.[34]

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on th past suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamohomeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pata Pangampong ku Ranaw , a confederation of independent principalities ( pangampong ) eachruled by datus and sultans, none of whom was supreme over the others.[35]

The MOA-AD goes on to describe the Bangsamoro people as the First Nation withdefined territory and with a system of government having entered into treaties of amity ancommerce with foreign nations.

The term First Nation is of Canadian origin referring to the indigenous peoples of that

territory, particularly those known as Indians. In Canada, each of these indigenous peoples equally entitled to be called First Nation, hence, all of them are usually described collectively by the plural First Nations. [36] To that extent, the MOA-AD, by identifying the Bangsamoro people as theFirst Nation suggesting its exclusive entitlement to that designation departsfrom the Canadian usage of the term.

The MOA-AD then mentions for the first time the Bangsamoro Juridical Entity (BJE)to which it grants the authority and jurisdiction over the Ancestral Domainand Ancestral Lands of the Bangsamoro.[37]

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as thmaritime, terrestrial, fluvial and alluvial domains, including the aerial domain and thatmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.[38]

More specifically, the core of the BJE is defined as the present geographic area of thARMM thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-TawiBasilan, and Marawi City. Significantly, this core also includes certain municipalities of Lanadel Norte that voted for inclusion in the ARMM in the 2001 plebiscite.[39]

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangaywhich are grouped into two categories, Category A and Category B. Each of these areas is to subjected to a plebiscite to be held on different dates, years apart from each other. ThuCategory A areas are to be subjected to a plebiscite not later than twelve (12) months followinthe signing of the MOA-AD.[40] Category B areas, also called Special Intervention Areas, onthe other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing ofseparate agreement the Comprehensive Compact.[41]
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The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natura

resources within its internal waters, defined as extending fifteen (15) kilometers from thecoastline of the BJE area;[42] that the BJE shall also have territorial waters, which shall str etch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) sou

east and south west of mainland Mindanao; and that within theseterritorial waters, the BJE andthe Central Government (used interchangeably with RP) shall exercise joint jurisdiction,authority and management over all natural resources.[43] Notably, the jurisdiction overtheinternal waters is not similarly described as joint.

The MOA-AD further provides for thesharing of minerals on theterritorial waters between the Central Government and the BJE, in favor of the latter, through production shariand economic cooperation agreement.[44] The activities which the Parties are allowed to conducton theterritorial waters are enumerated, among which are the exploration and utilization ofnatural resources, regulation of shipping and fishing activities, and the enforcement of police ansafety measures.[45] There is no similar provision on the sharing of minerals and allowed

activities with respect to the internal waters of the BJE.C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and tradrelations with foreign countries and shall have the option to establish trade missions in thoscountries. Such relationships and understandings, however, are not to include aggression againthe GRP. The BJE may also enter into environmental cooperation agreements.[46]

Theexternal defense of the BJE is to remain the duty and obligation of the CentralGovernment.The Central Government is also bound to take necessary s teps to ensure theBJEs participation in international meetings and events like those of the ASEAN and thespecialized agencies of the UN. The BJE is to be entitled to participate in Philippine officimissions and delegations for the negotiation of border agreements or protocols for environment protection and equitable sharing of incomes and revenues involving the bodies of water adjaceto or between the islands forming part of the ancestral domain.[47]

With regard to the right of exploring for, producing, and obtaining all potential sources oenergy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon to be vested in the BJE as the party having control within its territorial jurisdiction. This rightcarries the proviso that, in times of national emergency, when public interest so requires, theCentral Government may, for a fixed period and under reasonable terms as may be agreed upo by both Parties, assume or direct the operation of such resources.[48]

The sharing between the Central Government and the BJE of total production pertaining tnatural resources is to be 75:25 in favor of the BJE.[49]

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising fromany unjust dispossession of their territorial and proprietary rights, customary land tenures, their marginalization shall be acknowledged. Whenever restoration is no longer possiblereparation is to be in such form as mutually determined by the Parties.[50]
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The BJE maymodify or cancel the forest concessions, timber licenses, contracts or

agreements, mining concessions, Mineral Production and Sharing Agreements (MPSAIndustrial Forest Management Agreements (IFMA), and other land tenure instrumentsgranted bthe Philippine Government, including those issued by the present ARMM.[51]

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe andmonitor the implementation of theComprehensive Compact. This compact is to embody thedetails for the effective enforcement and the mechanisms and modalities for the actualimplementation of the MOA -AD. The MOA-AD explicitly provides that the participation ofthe third party shall not in any way affect the status of the relationship between the CentraGovernment and the BJE.[52]

The associative relationship

between the Central Government and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE aassociative, characterized by shared authority and responsibility. And it states that thestructure of governance is to be based on executive, legislative, judicial, and administrativinstitutions with defined powers and functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring amendments to the existing legalframework shall take effect upon signing of the Comprehensive Compact and upon effectingthe aforesaid amendments, with due regard to thenon-derogation of prior agreements andwithin the stipulated timeframe to be contained in the Comprehensive Compact.As will bediscussed later, much of the present controversy hangs on the legali ty of th is provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive ocivil service, electoral, financial and banking, education, legislation, legal, economic, police aninternal security force, judicial system and correctional institutions,the details of which shall bdiscussed in the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by RodolfGarcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and thMILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the

signatories as the representatives of the Parties, meaning the GRP and MILF themselves, andnot merely of the negotiating panels .[53] In addition, the signature page of the MOA-AD statesthat it is WITNESSED BY Datuk Othman Bin Abd Razak, Special Adviser to the PrimeMinister of Malaysia, ENDORSED BY Ambassador Sayed Elmasry, Adviser to Organizationof the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process iSouthern Philippines, and SIGNED IN THE PRESENCE OF Dr. Albert G. Romulo, Secretaryof Foreign Affairs of RP and Dato Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs,Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.


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Annexed to the MOA-AD are two documents containing the respective listscum maps of the provinces, municipalities, and barangays under Categories A and B earlier mentioned in thdiscussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies.[54] Courts decline toissue advisory opinions or to resolve hypothetical or feigned problems, or mere academquestions.[55] The limitation of the power of judicial review to actual cases andcontroversies defines the role assigned to the judiciary in a tripartite allocation of power, tassure that the courts will not intrude into areas committed to the other branches o

government.[56]

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legclaims, susceptible of judicial resolution as distinguished from a hypothetical or abstracdifference or dispute. There must be a contrariety of legal rights that can be interpreted anenforced on the basis of existing law and jurisprudence.[57] The Court can decide theconstitutionality of an act or treaty only when a proper case between opposing parties submitted for judicial determination.[58]

Related to the requirement of an actual case or controversy is the requirement of ripeness. question is ripe for adjudication when the act being challenged has had a direct adverse effect othe individual challenging it.[59] For a case to be considered ripe for adjudication, it is a prerequisite that something had then been accomplished or performed by either branch beforecourt may come into the picture,[60] and the petitioner must allege the existence of an immediateor threatened injury to itself as a result of the challenged action.[61] He must show that he hassustained or is immediately in danger of sustaining some direct injury as a result of the acomplained of .[62]

The Solicitor General argues that there is no justiciable controversy that is ripe for judiciareview in the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations anlegislative enactments as well as constitutional processes aimed at attaining a final peacefagreement. Simply put, the MOA-AD remains to be a proposal that does not automaticallcreate legally demandable rights and obligations until the list of operative acts required hav been duly complied with. x x x

x x x x
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In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to paupon issues based on hypothetical or feigned constitutional problems or interests with nconcrete bases. Considering the preliminary character of the MOA-AD, there are no concreacts that could possibly violate petitioners and intervenors rights since the acts complained ofare mere contemplated steps toward the formulation of a final peace agreement. Plainly

petitioners and intervenors perceived injury, if at all, is merely imaginary and illusory apartfrom being unfounded and based on mere conjectures. (Underscoring supplied)

The Solicitor General cites[63] the following provisions of the MOA-AD:

TERRITORY

x x x x

2. Toward this end, the Parties enter into the following stipulations:

x x x xd. Without derogating from the requirements of prior agreements, the Government stipulates conduct and deliver, using all possible legal measures, within twelve (12) months following thsigning of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted the map as Category A attached herein (the Annex). The Annex constitutes an integral part ofthis framework agreement. Toward this end, the Parties shall endeavor to complete thnegotiations and resolve all outstanding issues on the Comprehensive Compact within fiftee(15) months from the signing of the MOA-AD.

x x x x

GOVERNANCE

x x x x

7. The Parties agree that mechanisms and modalities for the actual implementation of thMOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enabit to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shacome into force upon the signing of a Comprehensive Compact and upon effecting the necessachanges to the legal framework with due regard to non-derogation of prior agreements anwithin the stipulated timeframe to be contained in the ComprehensiveCompact.[64] (Underscoring supplied)

The Solicitor Generals arguments fail to persuade.
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Concrete acts under the MOA-AD are not necessary to render the present controversy ripIn Pimentel, Jr. v. Aguirre ,[65]this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, tdispute is said to have ripened into a judicial controversy even without any other over

act. Indeed, even a singular violation of the Constitution and/or the law is enough to awake judicial duty.

x x x x

By the same token, when an act of the President, who in our constitutional scheme is a coequof Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling tdispute becomes the duty and the responsibility of the courts.[66]

In Santa Fe Independent School District v. Doe ,[67] the United States Supreme Court held that the

challenge to theconstitutionality of the schools policy allowing student -led prayers andspeeches before games was ripe for adjudication, even if no public prayer had yet been led undthe policy, because the policy was being challenged as unconstitutionalon its face .[68]

That the law or act in question is not yet effective does not negate ripeness. For example, in NewYork v. United States ,[69]decided in 1992, the United States Supreme Court held that the action bythe State of New York challenging the provisions of the Low-Level Radioactive Waste PolicAct was ripe for adjudication even if the questioned provision was not to take effect until Janua1, 1996, because the parties agreed that New York had to take immediate action to avoid th provision's consequences.[70]

The present petitions pray for Certiorari,[71] Prohibition, and Mandamus. Certiorari andProhibition are remedies granted by law when any tribunal, board or officer has acted, in the caof certiorari, or is proceeding, in the case of prohibition, without or in excess of its jurisdiction with grave abuse of discretion amounting to lack or excess of jurisdiction.[72] Mandamus is aremedy granted by law when any tribunal, corporation, board, officer or person unlawfullneglects the performance of an act which the law specifically enjoins as a duty resulting from office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right office to which such other is entitled.[73] Certiorari, Mandamus and Prohibition are appropriateremedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts legislative and executive officials.[74]

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3issued on February 28, 2001.[75] The said executive order requires that [t]he government's policy framework for peace, including the systematic approach and the administrative structufor carrying out the comprehensive peace process x x x be governed by this Executive Order. [76]

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms the MOA-AD without consulting the local government units or communities affected, no
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informing them of the proceedings. As will be discussed in greater detail later, such omissio by itself, constitutesa departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate theConstitution. The MOA-AD provides that any provisions of the MOA -AD requiring

amendments to the existing legal framework shall come into force upon the signing of Comprehensive Compact and upon effecting the necessary changes to the legal framework,implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, effect,guaranteed to the MILF the amendment of the Constitution.Such act constitutes anotherviolation of its authority. Again, these points will be discussed in more detail later.As the petitions allege acts or omissions on the part of respondent thatexceed their authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, t petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual caseor controversy ripe for adjudication exists.When an act of a branch of government isseriously alleged to have infringed the Constitution, it becomes not only the right but in factthe duty of the judiciary to settle the dispute.[77]

B. L OCUS STAN DI

For a party to havelocus standi , one must allege such a personal stake in the outcome ofthe controversy as to assure that concrete adverseness which sharpens the presentation of issuupon which the court so largely depends for illumination of difficult constitutionaquestions. [78]

Because constitutional cases are often public actions in which the relief sought is likely taffect other persons, a preliminary question frequently arises as to this interest in thconstitutional question raised.[79]

When suing as acitizen , the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to bsubjected to some burdens or penalties by reason of the statute or act complained of .[80] When theissue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest the execution of the laws.[81]

For ataxpayer , one is allowed to sue where there is an assertion that public funds areillegally disbursed or deflected to an illegal purpose, or that there is a wastage of public funthrough the enforcement of an invalid or unconstitutional law.[82] The Court retains discretionwhether or not to allow a taxpayers suit .[83]

In the case of alegislator or member of Congress , an act of the Executive that injures theinstitution of Congress causes a derivative but nonetheless substantial injury that can bquestioned by legislators. A member of the House of Representatives has standing to maintainviolate the prerogatives, powers and privileges vested by the Constitution in his office.[84]
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Anorganization may be granted standing to assert the rights of its members,[85] but themere invocation by the Integrated Bar of the Philippines or any member of the legal

profession of the duty to preserve the rule of law does not suffice to clothe it with standing.[86]

As regards alocal government unit (LGU), it can seek relief in order to protect or

vindicate an interest of its own, and of the other LGUs.[87]

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy th

requirements of the law authorizing intervention,[88] such as a legal interest in the matter inlitigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality onlocus standi, given the liberal attitude it has exercised, highlighted in the case of David v. Macapagal- Arroyo ,[89] where technicalities of procedure were brushed aside, the constitutional issues raise being of paramount public interest or of transcendental importance deserving the attention of tCourt in view of their seriousness, novelty and weight as precedents.[90] The Courts forbearing

stance onlocus standi on issues involving constitutional issues has for its purpose the protectionof fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determinwhether the other branches of government have kept themselves within the limits of thConstitution and the laws and have not abused the discretion given them, has brushed asidtechnical rules of procedure.[91]

In the petitions at bar, petitionersProvince of North Cotabato (G.R. No.183591)Province of Zamboanga del Norte(G.R. No. 183951),City of Iligan (G.R. No.183893) andCity of Zamboanga (G.R. No. 183752) and petitioners-in-interventionProvince ofSultan Kudarat, City of Isabela andMunicipality of Linamon havelocus standi in view ofthe direct and substantial injury that they, as LGUs, would suffer as their territories, whether whole or in part, are to be included in the intended domain of the BJE. These petitioners allethat they did not vote for their inclusion in the ARMM which would be expanded to form thBJE territory.Petitioners legal standing is thus beyond doubt.

In G.R. No. 183962, petitionersErnesto Maceda, Jejomar Binay andAquilinoPimentel III would have no standing as citizens and taxpayers for their failure to specify thathey would be denied some right or privilege or there would be wastage of public funds. Thfact that they are a former Senator, an incumbent mayor of Makati City, and a resident oCagayan de Oro, respectively, is of no consequence. Considering their invocation of thtranscendental importance of the issues at hand, however, the Court grants them standing.

Intervenors Franklin Drilon andAdel Tamano, in alleging their standing as taxpayers,assert that government funds would be expended for the conduct of an illegal andunconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be givelegal standing. Their allegation that the issues involved in these petitions are of undeniabletranscendental importance clothes them with added basis for their personality to intervene inthese petitions.
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With regard toSenator Manuel Roxas, his standing is premised on his being a member of

the Senateand a citizen to enforce compliance by respondents of the publics constitutional rightto be informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigatioor in the success or failure of either of the parties. He thus possesses the requisite standing as

intervenor.With respect to IntervenorsRuy Elias Lopez,as a former congressman of the 3rd district

of Davao City, a taxpayer and a member of the Bagobo tribe;Carlo B. Gomez, et al.,asmembers of the IBP Palawan chapter, citizens and taxpayers;Marino Ridao, as taxpayer,resident and member of theSangguniang Panlungsod of Cotabato City; and Kisin Buxani,astaxpayer, they failed to allege any proper legal interest in the present petitions. Just the samthe Court exercises its discretion to relax the procedural technicality onlocus standi given the paramount public interest in the issues at hand.

Intervening respondentsMuslim Multi-Sectoral Movement for Peace and

Development,an advocacy group for justice and the attainment of peace and prosperity inMuslim Mindanao; andMuslim Legal Assistance Foundation Inc., a non-governmentorganization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the camay be, in the resolution of the petitions concerning the MOA-AD, and prays for the denial the petitions on the grounds therein stated. Such legal interest suffices to clothe them witstanding.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfactioof all the reliefs prayed for by petitioners and the subsequent pronouncement of the ExecutivSecretary that [n]o matter what the Supreme Court ultimately decides[,] the government will notsign the MOA. [92]

In lending credence to this policy decision, the Solicitor General points out that thePresident had already disbanded the GRPPeace Panel.[93]

In David v. Macapagal-Arroyo ,[94] this Court held that the moot and academic principlenot being a magical formula that automatically dissuades courts in resolving a case, it will decicases, otherwise moot and academic, if it finds that (a) there is a grave violation of thConstitution;[95] (b) the situation is of exceptional character and paramount public interest isinvolved;[96] (c) the constitutional issue raised requires formulation of controlling principles toguide the bench, the bar, and the public;[97] and (d) the case is capable of repetition yet evadingreview.[98]

Another exclusionary circumstance that may be considered is where there isa voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suitfiled and the doer voluntarily ceases the challenged conduct, it does not automatically deprivthe tribunal of power to hear and determine the case and does not render the case moot especial
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when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence the violation.[99]

The present petitions fall squarely into these exceptions to thus thrust them into the domaiof judicial review. The grounds cited above in David are just as applicable in the present cases

as they were, not only in David , but also in Province of Batangas v. Romulo[100]

and Manalo v.Calderon [101] where the Court similarly decided them on the merits, supervening events thatwould ordinarily have rendered the same moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD anthe eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bearsemphasis that the signing of the MOA- AD did not push through due to the Courts issuance of aTemporary Restraining Order.

Contrary too to respondents position, the MOA -AD cannot be considered a mere list ofconsensus points, especially given its nomenclature, theneed to have it signed or initialed byall the parties concerned on August 5, 2008, and thefar-reaching Constitutionalimplications of these consensus points, foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed,there is a commitment on the part ofrespondents to amend and effect necessary changes to the existing legal framework forcertain provisions of the MOA-AD to take effect. Consequently, the present petitions are notconfined to the terms and provisions of the MOA-AD, but to otheron-going andfuture negotiations and agreements necessary for its realization. The petitions havenot, therefore, been rendered moot and academic simply by the public disclosure of the MOAAD,[102] the manifestation that it will not be signed as well as the disbanding of the GRP Panenot withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interestinvolving a significant part of the countrys territory and the wide -ranging political modificationsof affected LGUs. The assertionthat the MOA-AD is subject to further legal enactmentsincluding possible Constitutional amendments more than ever provides impetus for theCourt toformulate controlling principles to guide the bench, the bar, the public and, in thiscase, the government and its negotiating entity.

Respondents citeSuplico v. NEDA, et al .[103] where the Court did not pontificat[e] onissues which no longer legitimately constitute an actual case or controversy [as this] will do moharm than good to the nation as a whole.
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The present petitions must be differentiated fromSuplico . Primarily, inSuplico , what wasassailed and eventually cancelled was a stand-alone government procurement contract for national broadband network involving a one-time contractual relationbetween two parties thegovernment and a private foreign corporation. As the issues therein involved specifigovernment procurement policies and standard principles on contracts, the majority opinio

in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to thtransactions and parties involved in the controversy.The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is asignificant part of a series ofagreements necessary to carry out the TripoliAgreement 2001. The MOA-AD which dwells othe Ancestral Domain Aspect of said Tripoli Agreement is the third such component to bundertaken following the implementation of the Security Aspect in August 2001 anthe Humanitarian, Rehabilitation and Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 t

the Solicitor General, has stated that no matter what the Supreme Court ultimately deci des[,] thegovernment will not sign the MOA[-AD], mootness will not set in in light of the terms ofthe Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn upto carry outthe Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form,which could contain similar or significantly drastic provisions. While the Court notes the word the Executive Secretary that the government is committed to securing an agreement that is bothconstitutional and equitable because that is the only way that long-lasting peace can be assured,it is minded to render a decision on the merits in the present petitions toformulate controllingprinciples to guide the bench, the bar, the public and, most especially, the government innegotiating with the MILF regarding Ancestral Domain.

Respondents invite the Courts attention to the separate opinion of then Chief JusticeArtemio Panganiban inSanlakas v. Reye s[104] in which he stated that the doctrine of capable ofrepetition yet evading review can override mootness, provided the party raising it in a propercase has been and/or continue to be prejudiced or damaged as a direct result of theiissuance. They contend that the Court must have jurisdiction over the subject matter for thedoctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises origin jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction anDeclaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implicatioand raises questions that need to be resolved.[105] At all events, the Court has jurisdiction overmost if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrinimmediately referred to as what it had done in a number of landmark cases.[106] There is


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a reasonable expectation that petitioners, particularly the Provinces of North CotabatoZamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and thMunicipality of Linamon, will again be subjected to the same problem in the future arespondents actions are capable of repetition, in another or any form .

It is with respect to the prayers for Mandamus that the petitions have become mootrespondents having, by Compliance ofAugust 7, 2008, provided this Court and petitioners wiofficial copies of the final draft of the MOA-AD and its annexes. Too, intervenors have beefurnished, or have procured for themselves, copies of the MOA-AD.V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically twoSUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD wanegotiated and finalized, the other relating to its provisions,viz :

1. Did respondents violate constitutional and statutory provisions on public consultatioand the right to information when they negotiated and later initialed the MOA-AD?

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

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutionalright to information on matters of public concern, as provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall brecognized. Access to official records, and to documents, and papers pertaining to official actransactions, or decisions, as well as to government research data used as basis for policdevelopment, shall be afforded the citizen, subject to such limitations as may be provided blaw.[107]

As early as 1948, inSubido v. Ozaeta ,[108] the Court has recognized the statutory right toexamine and inspect public records, a right which was eventually accorded constitutional status

The right of access to public documents, as enshrined in both the 1973 Constitution anthe 1987 Constitution, has been recognized as a self-executory constitutional right.[109]

In the 1976 case of Baldoza v. Hon. Judge Dimaano ,[110] the Court ruled that access to public records is predicated on the right of the people to acquire information on matters of pubconcern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters osocial and political significance.

x x x The incorporation of this right in the Constitution is a recognition of thefundamental role of free exchange of information in a democracy. There can be no realist

Documents

Province of North Cotabato v. GRP