PROVINCE OF NORTH COTABATO vs GOV’T OF THE REP OF THE PHIL (GRP)G.R. No. 183591, October 14, 2008Carpio-Morales

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

Features/Stipulations of the MOA-AD Grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates. The

territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom was supreme over the others.

Mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.

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

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD. Category B areas, also called "Special Intervention Areas," on the other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement - the Comprehensive Compact.

BJE shall have jurisdiction over all natural resources within its " internal waters," defined as extending fifteen (15) kilometers from the coastline of the BJE area.

BJE shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial waters, the BJE and the "Central Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural resources.

Describes the relationship of the Central Government and the BJE as "associative," characterized by shared authority and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact.

Provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.

On July 23, 2008, the Province of North Cotabato and Vice-Governor Emmanuel Piñol filed a petition for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. o Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and

furnish them the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon.

o Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.

Other petitions filed: Mandamus and Prohibition filed by the City of Zamboanga, Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep.

Erico Basilio Fabian who likewise pray for similar injunctive reliefs. City of Iligan filed a petition for Injunction and/or Declaratory Relief Province of Zamboanga del Norte, Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-

Carreon, Rep. Cesar Jalosjos, and the members of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition

Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition

ISSUE: Whether or not the MOA-AD is unconstitutionalHELD/RATIO: YES

The concept of associative relationship envisioned between the GRP and the BJE, is unconstitutional

o The concept presupposes that the associated entity is a state and implies that the same is on its way to independence.

o The concept of association is not recognized under the present Constitutiono 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 Constitutiono 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.

o Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region."

o Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE.

That "amendments to the existing legal framework" shall take effect upon signing of the Comprehensive Compacto The clause virtually guarantees that the necessary amendments to the Constitution and the laws will

eventually be put in place. o Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding

such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.

o 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.

Presidential Adviser on the Peace Process Esperon committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by EO No. 3, RA 7160, and RA 8371

o E.O. No. 3 (defining the authority of the GRP negotiating panel) itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society.

o Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment.

o Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.