pjj vol. 13, issue 36 book i july-december 2011

JJJJJAAAAAUDICIALUDICIALUDICIALUDICIALUDICIALOURNALOURNALOURNALOURNALOURNAL

PHILPHILPHILPHILPHIL

UNCLOS

PHILIPPINE MARITIME

REGIMES

BOOK I

PHILIPPINE LAWS

AND JURISPRUDENCE

JULY - DECEMBER 2011 VOL. 13, ISSUE NO. 36

TheTheTheTheThe

The PHILJA Judicial Journal

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SUPREME COURT OF THE PHILIPPINES

CHIEF JUSTICEHon. RENATO C. CORONA

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VOLUME 13 ISSUE NO. 36 JULY-DECEMBER 2011

THE PHILJA JUDICIAL JOURNAL

CONTENTSOFFICIALS OF THE SUPREME COURT OF THE PHILIPPINES ....................... ivOFFICIALS OF THE PHILIPPINE JUDICIAL ACADEMY .................................. v

PHILIPPINE LAWS AND JURISPRUDENCE

(BOOK I)

I. PHILIPPINE LAWS

Republic Act No. 3046 (As amended by RA No. 5446)An Act to Define the Baselines of the Territorial Sea ofthe Philippines ............................................................... 1

Republic Act No. 5446An Act to Amend Section One of RA No. 3046, entitled“An Act to Define the Baselines of the Territorial Sea ofthe Philippines” ............................................................. 6

Presidential Decree No. 1599Establishing an Exclusive Economic Zone and for OtherPurposes .......................................................................11

Republic Act No. 9522An Act to Amend Certain Provisions of Republic Act No.3046, as Amended by RA No. 5446, to Define theArchipelagic Baseline of the Philippines and for OtherPurposes ...................................................................... 14

CONTENTS

II. PHILIPPINE JURISPRUDENCE

Magallona, Merlin M. v. Ermita, Eduardo ............................. 19Concurring OpinionAssociate Justice Presbitero J. Velasco, Jr. ..................... 46

Province of North Cotabato v. Government of the Republicof the Philippines Peace Panel on Ancestral Domain (GRP) ..... 65

Separate Concurring OpinionChief Justice Reynato S. Puno ...................................... 155Separate Concurring OpinionAssociate Justice Consuelo Ynares-Santiago .................. 177Separate Concurring OpinionAssociate Justice Antonio T. Carpio ................................ 193Separate OpinionAssociate Justice Adolfo S. Azcuna ............................... 233Separate OpinionAssociate Justice Dante O. Tinga ..................................... 235Separate OpinionAssociate Justice Minita V. Chico-Nazario......................... 257Dissenting OpinionAssociate Justice Presbitero J. Velasco, Jr. ..................... 264Dissenting OpinionAssociate Justice Antonio Eduardo B. Nachura ............. 272Separate OpinionAssociate Justice Ruben T. Reyes ................................... 298Separate Concurring and Dissenting OpinionAssociate Justice Teresita J. Leonardo-de Castro ............. 327Concurring and Dissenting OpinionAssociate Justice Arturo D. Brion ................................... 330

CONTENTS

III. RELATED ARTICLES

LectureThe Philippine National Territory

Ambassador Lauro L. Baja, Jr. ........................................... 354

Reactions on the Metes and Bounds of the PhilippineNational Territory: An International Law andPolicy PerspectiveJay L. Batongbacal, Esq. ................................................368

Reactions on Why There is an Immediate Need to Enact aBill Amending Republic Act No. 3046, As Amended,to Conform to the Convention on the Law of the SeaAtty. Estelito P. Mendoza ............................................. 391

1REPUBLIC ACT NO. 3046

Republic Act No. 3046Republic Act No. 3046Republic Act No. 3046Republic Act No. 3046Republic Act No. 3046(As Amended by RA No. 5446)(As Amended by RA No. 5446)(As Amended by RA No. 5446)(As Amended by RA No. 5446)(As Amended by RA No. 5446)

An Act to Define the BaselinesAn Act to Define the BaselinesAn Act to Define the BaselinesAn Act to Define the BaselinesAn Act to Define the Baselinesof the Territorial Sea of the Philippinesof the Territorial Sea of the Philippinesof the Territorial Sea of the Philippinesof the Territorial Sea of the Philippinesof the Territorial Sea of the Philippines

WHEREAS, the Constitution of the Philippines describes thenational territory as comprising all the territory ceded to theUnited States by the Treaty of Paris concluded between theUnited States and Spain on December 10, 1898, the limits ofwhich are set forth in Article III of said treaty, together with allthe islands embraced in the treaty concluded at Washington,between the United States and Spain on November 7, 1900, andin the treaty concluded between the United States and GreatBritain on January 2, 1930, and all the territory over which theGovernment of the Philippine Islands exercised jurisdiction atthe time of the adoption of the Constitution;

WHEREAS, all the waters within the limits set forth in the above-mentioned treaties have always been regarded as part of theterritory of the Philippine Islands;

WHEREAS, all the waters around, between and connecting thevarious islands of the Philippines archipelago, irrespective oftheir width or dimension, have always been considered asnecessary appurtenances of the land territory, forming part ofthe inland or internal waters of the Philippines;

WHEREAS, all the waters beyond the outermost islands of thearchipelago but within the limits of the boundaries set forth inthe aforementioned treaties comprise the territorial sea of thePhilippines;

WHEREAS, the baselines from which the territorial sea of thePhilippines is determined consist of straight lines joiningappropriate points of the outermost islands of the archipelago;and

WHEREAS, the said baselines should be clarified and specificallydefined and described for the information of all concerned;

Now, therefor,

PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I2

SECTION 1. The baselines for the territorial sea of the Philippinesare hereby defined and described specifically as follows:


SEC. 2. All waters within the baselines provided for in SectionOne hereof are considered inland or internal waters of thePhilippines.

SEC. 3. This Act shall take effect upon its approval.

Approved: June 17, 1961.


Republic Act No. 5446Republic Act No. 5446Republic Act No. 5446Republic Act No. 5446Republic Act No. 5446

An Act to Amend Section One of Republic ActAn Act to Amend Section One of Republic ActAn Act to Amend Section One of Republic ActAn Act to Amend Section One of Republic ActAn Act to Amend Section One of Republic ActNumbered Thirty Hundred and Forty-Six,Numbered Thirty Hundred and Forty-Six,Numbered Thirty Hundred and Forty-Six,Numbered Thirty Hundred and Forty-Six,Numbered Thirty Hundred and Forty-Six,

Entitled “An Act to Define the Baselines of theEntitled “An Act to Define the Baselines of theEntitled “An Act to Define the Baselines of theEntitled “An Act to Define the Baselines of theEntitled “An Act to Define the Baselines of theTerritorial Sea of the Philippines”Territorial Sea of the Philippines”Territorial Sea of the Philippines”Territorial Sea of the Philippines”Territorial Sea of the Philippines”

SECTION 1. To correct typographical errors, Section One of RepublicAct numbered thirty hundred and forty-six is amended to readas follows:

SECTION 1. The baselines for the territorial sea of the Philippinesare hereby defined and described specifically as follows:


SEC. 2. The definition of the baselines of the territorial sea ofthe Philippine Archipelago as provided in this Act is withoutprejudice to the delineation of the baselines of the territorialsea around the territory of Sabah, situated in North Borneo,over which the Republic of the Philippines has acquireddominion and sovereignty.chanrobles virtualaw library

SEC. 3. This Act shall take effect upon its approval.

Approved: September 18, 1968.

11PRESIDENTIAL DECREE NO. 1599

Presidential Decree No. 1599Presidential Decree No. 1599Presidential Decree No. 1599Presidential Decree No. 1599Presidential Decree No. 1599

Establishing an Exclusive Economic ZoneEstablishing an Exclusive Economic ZoneEstablishing an Exclusive Economic ZoneEstablishing an Exclusive Economic ZoneEstablishing an Exclusive Economic Zoneand for Other Purposesand for Other Purposesand for Other Purposesand for Other Purposesand for Other Purposes

WHEREAS, an exclusive economic zone extending to a distanceof two hundred nautical miles from the baselines from whichthe territorial sea is measured is vital to the economic survivaland development of the Republic of the Philippines;

WHEREAS, such a zone is now a recognized principle ofinternational law;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of thePhilippines, by virtue of the powers vested in me by theConstitution, do hereby decree and order:

SECTION 1. There is hereby established a zone to be known as theexclusive economic zone of the Philippines. The exclusiveeconomic zone shall extend to a distance of two hundrednautical miles beyond and from the baselines from which theterritorial sea is measured: Provided, That, where the outerlimits of the zone as thus determined overlap the exclusiveeconomic zone of an adjacent or neighboring state, the commonboundaries shall be determined by agreement with the stateconcerned or in accordance with pertinent generally recognizedprinciples of international law on delimitation.

SEC. 2. Without prejudice to the rights of the Republic of thePhilippines over its territorial sea and continental shelf, it shallhave and exercise in the exclusive economic zone establishedherein the following;

(a) Sovereignty rights for the purpose of exploration andexploitation, conservation and management of thenatural resources, whether living or non-living, bothrenewable and non-renewable, of the seabed,including the subsoil and the superjacent waters, andwith regard to other activities for the economic


exploitation and exploration of the resources of thezone, such as the production of energy from the water,currents and winds;

(b) Exclusive rights and jurisdiction with respect to theestablishment and utilization of artificial islands, off-shore terminals, installations and structures, thepreservation of the marine environment, including theprevention and control of pollution, and scientificresearch;

(c) Such other rights as are recognized by international lawor state practice.

SEC. 3. Except in accordance with the terms of any agreemententered into with the Republic of the Philippines or of anylicense granted by it or under authority by the Republic of thePhilippines, no person shall, in relation to the exclusiveeconomic zone:

(a) explore or exploit any resources;

(b) carry out any search, excavation or drilling operations:

(c) conduct any research;

(d) construct, maintain or operate any artificial island, off-shore terminal, installation or other structure or device;or

(e) perform any act or engage in any activity which iscontrary to, or in derogation of, the sovereign rightsand jurisdiction herein provided.

Nothing herein shall be deemed a prohibition on a citizenof the Philippines, whether natural or juridical, against theperformance of any of the foregoing acts, if allowed underexisting laws.

SEC. 4. Other states shall enjoy in the exclusive economic zonefreedoms with respect to navigation and overflight, the layingof submarine cables and pipelines, and other internationally

13PRESIDENTIAL DECREE NO. 1599

lawful uses of the sea relating to navigation andcommunications.

SEC. 5.

(a) The President may authorize the appropriategovernment office/agency to make and promulgate suchrules and regulations which may be deemed proper andnecessary for carrying out the purposes of this degree.

(b) Any person who shall violate any provision of this decreeor of any rule or regulation promulgated hereunder andapproved by the President shall be subject to a finewhich shall not be less than two thousand pesos(P2,000.00) nor be more than one hundred thousandpesos (100,000.00) or imprisonment ranging from sixmonths to 10 years, or both such fine and imprisonment,in the discretion of the court. Vessels and otherequipment or articles used in connection therewithshall be subject to seizure and forfeiture.

SEC. 6. This Decree shall take effect 30 days after publication inthe Official Gazette.

Approved: June 11, 1978.


Republic Act No. 9522Republic Act No. 9522Republic Act No. 9522Republic Act No. 9522Republic Act No. 9522

An Act to Amend Certain Provisions ofAn Act to Amend Certain Provisions ofAn Act to Amend Certain Provisions ofAn Act to Amend Certain Provisions ofAn Act to Amend Certain Provisions ofRepublic Act No. 3046, as Amended byRepublic Act No. 3046, as Amended byRepublic Act No. 3046, as Amended byRepublic Act No. 3046, as Amended byRepublic Act No. 3046, as Amended byRepublic Act No. 5446, to Define theRepublic Act No. 5446, to Define theRepublic Act No. 5446, to Define theRepublic Act No. 5446, to Define theRepublic Act No. 5446, to Define the

Archipelagic Baseline of the PhilippinesArchipelagic Baseline of the PhilippinesArchipelagic Baseline of the PhilippinesArchipelagic Baseline of the PhilippinesArchipelagic Baseline of the Philippinesand for Other Purposesand for Other Purposesand for Other Purposesand for Other Purposesand for Other Purposes

Be it enacted by the Senate and House of Representatives of thePhilippines in Congress assembled:

SECTION 1. Section 1 of Republic Act No. 3046, entitled “An Act toDefine the Baselines of the Territorial Sea of the Philippines,”as amended by Section 1 of Republic Act No. 5446, is herebyamended to read as follows:

SECTION 1. The baselines of the Philippines archipelago arehereby defined and described specifically as follows:


SEC. 2. The baseline in the following areas over which thePhilippines likewise exercises sovereignty and jurisdiction shallbe determined as “Regime of Islands” under the Republic ofthe Philippines consistent with Article 121 of the United NationsConvention on the Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted underPresidential Decree No. 1596; and

b) Bajo de Masinloc, also known as Scarborough Shoal.

SEC. 3. This Act affirms that the Republic of the Philippines hasdominion, sovereignty and jurisdiction over all portions of thenational territory as defined in the Constitution and byprovisions of applicable laws including, without limitation,Republic Act No. 7160, otherwise known as the LocalGovernment Code of 1991, as amended.

SEC. 4. This Act, together with the geographic coordinates andthe chart and maps indicating the aforesaid baselines, shall bedeposited and registered with the Secretary General of theUnited Nations.

SEC. 5. The National Mapping and Resource Information Authority(NAMRIA) shall forthwith produce and publish charts and mapsof the appropriate scale clearly representing the delineation ofbasepoints and baselines as set forth in this Act.

SEC. 6. The amount necessary to carry out the provisions of thisAct shall be provided in a supplemental budget or included inthe General Appropriations Act of the year of its enactmentinto law.

SEC. 7. If any portion or provision of this Act is declaredunconstitutional or invalid the other portions or provisionshereof which are not affected thereby shall continue to be infull force and effect.

SEC. 8. The provisions of Republic Act No. 3046, as amended byRepublic Act No. 5446, and all other laws, decrees, executive


orders, rules and issuances inconsistent with this Act are herebyamended or modified accordingly.

SEC. 9. This Act shall take effect 15 days following its publicationin the Official Gazette or in any two newspaper of generalcirculation.

Approved: March 10, 2009.

19MAGALLONA v. ERMITA

Republic of the PhilippinesSupreme Court

Manila

En Banc

G.R. No. 187167G.R. No. 187167G.R. No. 187167G.R. No. 187167G.R. No. 187167August 16, 2011

Prof. Merlin M. Magallona, Akbayan Party-List Rep. RisaHontiveros, Prof. Harry C. Roque, Jr., and University of thePhilippines College of Law Students, Alithea Barbara Acas,Voltaire Alferes, Czarina May Altez, Francis Alvin Asilo, SherylBalot, Ruby Amor Barraca, Jose Javier Bautista, Romina Bernardo,Valerie Pagasa Buenaventura, Edan Marri Cañete, Vann AllenDela Cruz, Rene Delorino, Paulyn May Duman, Sharon Escoto,Rodrigo Fajardo III, Girlie Ferrer, Raoulle Osen Ferrer, CarlaRegina Grepo, Anna Marie Cecilia Go, Irish Kay Kalaw, Mary AnnJoy Lee, Maria Luisa Manalaysay, Miguel Rafael Musngi, MichaelOcampo, Jaklyn Hanna Pineda, William Ragamat, Maricar Ramos,Enrik Fort Revillas, James Mark Terry Ridon, Johann Frantz RiveraIV, Christian Rivero, Dianne Marie Roa, Nicholas Santizo, MelissaChristina Santos, Cristine Mae Tabing, Vanessa Anne Torno, MariaEster Vanguardia, and Marcelino Veloso III, petitioners,

– versus –

Hon. Eduardo Ermita, in his capacity as Executive Secretary, Hon.Alberto Romulo, in his capacity as Secretary of the Departmentof Foreign Affairs, Hon. Rolando Andaya, in his capacity asSecretary of the Department of Budget and Management, Hon.Diony Ventura, in his capacity as Administrator of the NationalMapping and Resource Information Authority, and Hon. HilarioDavide, Jr., in his capacity as representative of the PermanentMission of the Republic of the Philippines to the United Nations,respondents.


DECISION

Carpio, J.:

THE CASE

This original action for the writs of certiorari and prohibitionassails the constitutionality of Republic Act No. 95221 (RA No.9522) adjusting the country’s archipelagic baselines andclassifying the baseline regime of nearby territories.

THE ANTECEDENTS

In 1961, Congress passed Republic Act No. 3046 (RA No. 3046)2

demarcating the maritime baselines of the Philippines as anarchipelagic State.3 This law followed the framing of theConvention on the Territorial Sea and the Contiguous Zone in1958 (UNCLOS I),4 codifying, among others, the sovereign rightof States parties over their “territorial sea,” the breadth ofwhich, however, was left undetermined. Attempts to fill thisvoid during the second round of negotiations in Geneva in 1960

1 Entitled “An Act to Amend Certain Provisions of Republic Act No.3046, as Amended by Republic Act No. 5446, to Define theArchipelagic Baselines of the Philippines, and for Other Purposes.”

2 Entitled “An Act to Define the Baselines of the Territorial Sea of thePhilippines.”

3 The third “Whereas Clause” of RA No. 3046 expresses the import oftreating the Philippines as an archipelagic State:

“WHEREAS, all the waters around, between, and connectingthe various islands of the Philippine archipelago,irrespective of their width or dimensions, have alwaysbeen considered as necessary appurtenances of the landterritory, forming part of the inland waters of thePhilippines.”

4 One of the four conventions framed during the first United NationsConvention on the Law of the Sea in Geneva, this treaty, excludingthe Philippines, entered into force on September 10, 1964.


(UNCLOS II) proved futile. Thus, domestically, RA No. 3046remained unchanged for nearly five decades, save forlegislation passed in 1968 (Republic Act No. 5446 [RA No. 5446])correcting typographical errors and reserving the drawing ofbaselines around Sabah in North Borneo.

In March 2009, Congress amended RA No. 3046 by enactingRA No. 9522, the statute now under scrutiny. The change wasprompted by the need to make RA No. 3046 compliant with theterms of the United Nations Convention on the Law of the Sea(UNCLOS III),5 which the Philippines ratified on February 27,1984.6 Among others, UNCLOS III prescribes the water-land ratio,length, and contour of baselines of archipelagic States like thePhilippines7 and sets the deadline for the filing of applicationfor the extended continental shelf.8 Complying with theserequirements, RA No. 9522 shortened one baseline, optimizedthe location of some basepoints around the Philippinearchipelago and classified adjacent territories, namely, the

5 UNCLOS III entered into force on November 16, 1994.6 The Philippines signed the treaty on December 10, 1982.7 Article 47, paragraphs 1–3, provide:

1. An archipelagic State may draw straight archipelagicbaselines joining the outermost points of the outermostislands and drying reefs of the archipelago provided thatwithin such baselines are included the main islands andan area in which the ratio of the area of the water to thearea of the land, including atolls, is between 1 to 1 and 9to 1.

2. The length of such baselines shall not exceed 100 nauticalmiles, except that up to 3 percent of the total number ofbaselines enclosing any archipelago may exceed thatlength, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to anyappreciable extent from the general configuration of thearchipelago. (Emphasis supplied)

x x x x

8 UNCLOS III entered into force on November 16, 1994. The deadlinefor the filing of application is mandated in Article 4, Annex II:


Kalayaan Island Group (KIG) and the Scarborough Shoal, as“regimes of islands” whose islands generate their ownapplicable maritime zones.

Petitioners, professors of law, law students and a legislator,in their respective capacities as “citizens, taxpayers or x x xlegislators,”9 as the case may be, assail the constitutionality ofRA No. 9522 on two principal grounds, namely: (1) RA No. 9522reduces Philippine maritime territory, and logically, the reachof the Philippine state’s sovereign power, in violation of Article1 of the 1987 Constitution,10 embodying the terms of the Treaty

“Where a coastal State intends to establish, in accordance withArticle 76, the outer limits of its continental shelf beyond200 nautical miles, it shall submit particulars of such limits to theCommission along with supporting scientific and technical dataas soon as possible but in any case within 10 years of the entryinto force of this Convention for that State. The coastal State shallat the same time give the names of any Commission members whohave provided it with scientific and technical advice.”(Underscoring supplied)

In a subsequent meeting, the States parties agreed that for Stateswhich became bound by the treaty before May 13, 1999 (such asthe Philippines) the ten-year period will be counted from that date.Thus, RA No. 9522, which took effect on March 27, 2009, barely metthe deadline.

9 Rollo, p. 34.10 Which 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 sovereigntyor jurisdiction, consisting of its terrestrial, fluvial, and aerialdomains, including its territorial sea, the seabed, the subsoil, theinsular shelves, and other submarine areas. The waters around,between, and connecting the islands of the archipelago, regardlessof their breadth and dimensions, form part of the internal watersof the Philippines.”


of Paris11 and ancillary treaties,12 and (2) RA No. 9522 opens thecountry’s waters landward of the baselines to maritime passageby all vessels and aircrafts, undermining Philippine sovereigntyand national security, contravening the country’s nuclear-freepolicy, and damaging marine resources, in violation of relevantconstitutional provisions.13

In addition, petitioners contend that RA No. 9522’s treatmentof the KIG as “regime of islands” not only results in the loss of alarge maritime area but also prejudices the livelihood ofsubsistence fishermen.14 To buttress their argument ofterritorial diminution, petitioners facially attack RA No. 9522for what it excluded and included – its failure to reference eitherthe Treaty of Paris or Sabah and its use of UNCLOS III’s frameworkof regime of islands to determine the maritime zones of theKIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raisedthreshold issues questioning (1) the petition’s compliance withthe case or controversy requirement for judicial reviewgrounded on petitioners’ alleged lack of locus standi and (2)the propriety of the writs of certiorari and prohibition to assailthe constitutionality of RA No. 9522. On the merits, respondentsdefended RA No.9522 as the country’s compliance with theterms of UNCLOS III, preserving Philippine territory over theKIG or Scarborough Shoal. Respondents add that RA No. 952211 Entered into between the Unites States and Spain on December 10,

1898 following the conclusion of the Spanish-American War. Underthe terms of the treaty, Spain ceded to the United States “thearchipelago known as the Philippine Islands” lying within itstechnical description.

12 The Treaty of Washington, between Spain and the United States(November 7, 1900), transferring to the US the islands of Cagayan,Sulu, and Sibutu and the US-Great Britain Convention (January 2,1930) demarcating boundary lines between the Philippines andNorth Borneo.

13 Article II, Section 7, Section 8, and Section 16.14 Allegedly in violation of Article XII, Section 2, paragraph 2 and

Article XIII, Section 7 of the Constitution.


does not undermine the country’s security, environment andeconomic interests or relinquish the Philippines’ claim overSabah.

Respondents also question the normative force, underinternational law, of petitioners’ assertion that what Spainceded to the United States under the Treaty of Paris were theislands and all the waters found within the boundaries of therectangular area drawn under the Treaty of Paris.

We left unacted petitioners’ prayer for an injunctive writ.

THE ISSUES

The petition raises the following issues:

A. Preliminarily –

(1) Whether petitioners possess locus standi tobring this suit; and

(2) Whether the writs of certiorari and prohibitionare the proper remedies to assail theconstitutionality of RA No. 9522.

B. On the merits, whether RA No. 9522 is unconstitutional.

THE RULING OF THE COURT

On the threshold issues, we hold that (1) petitioners possesslocus standi to bring this suit as citizens and (2) the writs ofcertiorari and prohibition are proper remedies to test theconstitutionality of RA No. 9522. On the merits, we find no basisto declare RA No. 9522 unconstitutional.

ON THE THRESHOLD ISSUES

Petitioners Possess Locus Standi as Citizens

Petitioners themselves undermine their assertion of locusstandi as legislators and taxpayers because the petition allegesneither infringement of legislative prerogative15 nor misuse of

15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).


public funds,16 occasioned by the passage and implementationof RA No. 9522. Nonetheless, we recognize petitioners’ locusstandi as citizens with constitutionally sufficient interest in theresolution of the merits of the case which undoubtedly raisesissues of national significance necessitating urgent resolution.Indeed, owing to the peculiar nature of RA No. 9522, it isunderstandably difficult to find other litigants possessing “amore direct and specific interest” to bring the suit, thussatisfying one of the requirements for granting citizenshipstanding.17

The Writs of Certiorari and Prohibitionare Proper Remedies to Testthe Constitutionality of Statutes

In praying for the dismissal of the petition on preliminarygrounds, respondents seek a strict observance of the offices ofthe writs of certiorari and prohibition, noting that the writscannot issue absent any showing of grave abuse of discretion inthe exercise of judicial, quasi-judicial or ministerial powers onthe part of respondents and resulting prejudice on the part ofpetitioners.18

Respondents’ submission holds true in ordinary civilproceedings. When this Court exercises its constitutional powerof judicial review, however, we have, by tradition, viewed thewrits of certiorari and prohibition as proper remedial vehiclesto test the constitutionality of statutes,19 and indeed, of acts of

16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidadv. Commission on Elections, 165 Phil. 303 (1976).

17 Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003)citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, May 5,1994, 232 SCRA 110, 155–156 (1995) (Feliciano, J., concurring).The two other factors are: “the character of funds or assets involvedin the controversy and a clear disregard of constitutional orstatutory prohibition.” Id.

18 Rollo, pp. 144–147.19 See e.g. Aquino III v. Commission on Elections, G.R. No. 189793, April

7, 2010, 617 SCRA 623 (dismissing a petition for certiorari and


other branches of government.20 Issues of constitutional importare sometimes crafted out of statutes which, while having nobearing on the personal interests of the petitioners, carry suchrelevance in the life of this nation that the Court inevitablyfinds itself constrained to take cognizance of the case and passupon the issues raised, non-compliance with the letter ofprocedural rules notwithstanding. The statute sought to bereviewed here is one such law.

RA NO. 9522 IS NOT UNCONSTITUTIONAL

RA No. 9522 is a Statutory Tool to Demarcatethe Country’s Maritime Zones andContinental Shelf Under UNCLOS III,not to Delineate Philippine Territory

Petitioners submit that RA No. 9522 “dismembers a large portionof the national territory”21 because it discards the pre-UNCLOSIII demarcation of Philippine territory under the Treaty of Parisand related treaties, successively encoded in the definition ofnational territory under the 1935, 1973 and 1987 Constitutions.Petitioners theorize that this constitutional definition trumpsany treaty or statutory provision denying the Philippinessovereign control over waters, beyond the territorial searecognized at the time of the Treaty of Paris, that Spainsupposedly ceded to the United States. Petitioners argue thatfrom the Treaty of Paris’ technical description, Philippine

prohibition assailing the constitutionality of Republic Act No. 9716,not for the impropriety of remedy but for lack of merit); Aldaba v.Commission on Elections, G.R. No. 188078, January 25, 2010, 611SCRA 137 (issuing the writ of prohibition to declare unconstitutionalRepublic Act No. 9591); Macalintal v. Commission on Elections, 453Phil. 586 (2003) (issuing the writs of certiorari and prohibitiondeclaring unconstitutional portions of Republic Act No. 9189).

20 See e.g. Neri v. Senate Committee on Accountability of Public Officersand Investigations, G.R. No. 180643, March 25, 2008, 549 SCRA 77(granting a writ of certiorari against the Philippine Senate andnullifying the Senate contempt order issued against petitioner).

21 Rollo, p. 31.


sovereignty over territorial waters extends hundreds of nauticalmiles around the Philippine archipelago, embracing therectangular area delineated in the Treaty of Paris.22

Petitioners’ theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss)of territory. It is a multilateral treaty regulating, among others,sea-use rights over maritime zones (i.e., the territorial waters[12 nautical miles from the baselines], contiguous zone [24nautical miles from the baselines], exclusive economic zone[200 nautical miles from the baselines]), and continental shelvesthat UNCLOS III delimits.23 UNCLOS III was the culmination ofdecades-long negotiations among United Nations members tocodify norms regulating the conduct of States in the world’soceans and submarine areas, recognizing coastal andarchipelagic States’ graduated authority over a limited span ofwaters and submarine lands along their coasts.

On the other hand, baselines laws such as RA No. 9522 areenacted by UNCLOS III States parties to mark-out specificbasepoints along their coasts from which baselines are drawn,either straight or contoured, to serve as geographic startingpoints to measure the breadth of the maritime zones andcontinental shelf. Article 48 of UNCLOS III on archipelagic Stateslike ours could not be any clearer:

ART. 48. Measurement of the breadth of the territorial sea, thecontiguous zone, the exclusive economic zone and thecontinental shelf. – The breadth of the territorial sea, thecontiguous zone, the exclusive economic zone and the

22 Respondents state in their Comment that petitioners’ theory “hasnot been accepted or recognized by either the United States orSpain,” the parties to the Treaty of Paris. Respondents add that “noState is known to have supported this proposition.” Rollo, p. 179.

23 UNCLOS III belongs to that larger corpus of international law of thesea, which petitioner Magallona himself defined as “a body oftreaty rules and customary norms governing the uses of the sea, theexploitation of its resources, and the exercise of jurisdiction overmaritime regimes. x x x x” (MERLIN M. MAGALLONA, Primer on the Law ofthe Sea 1 [1997]) (Italicization supplied).


continental shelf shall be measured from archipelagic baselinesdrawn in accordance with Article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanismsfor UNCLOS III States parties to delimit with precision the extentof their maritime zones and continental shelves. In turn, thisgives notice to the rest of the international community of thescope of the maritime space and submarine areas within whichStates parties exercise treaty-based rights, namely, the exerciseof sovereignty over territorial waters (Article 2), the jurisdictionto enforce customs, fiscal, immigration, and sanitation laws inthe contiguous zone (Article 33), and the right to exploit theliving and non-living resources in the exclusive economic zone(Article 56) and continental shelf (Article 77).

Even under petitioners’ theory that the Philippine territoryembraces the islands and all the waters within the rectangulararea delimited in the Treaty of Paris, the baselines of thePhilippines would still have to be drawn in accordance with RANo. 9522 because this is the only way to draw the baselines inconformity with UNCLOS III. The baselines cannot be drawnfrom the boundaries or other portions of the rectangular areadelineated in the Treaty of Paris, but from the “outermost islandsand drying reefs of the archipelago.”24

UNCLOS III and its ancillary baselines laws play no role inthe acquisition, enlargement or, as petitioners claim,diminution of territory. Under traditional international lawtypology, States acquire (or conversely, lose) territory throughoccupation, accretion, cession and prescription,25 not byexecuting multilateral treaties on the regulations of sea-use24 Following Article 47(1) of UNCLOS III which provides:

An archipelagic State may draw straight archipelagicbaselines joining the outermost points of the outermostislands and drying reefs of the archipelago provided thatwithin such baselines are included the main islands andan area in which the ratio of the area of the water to thearea of the land, including atolls, is between 1 to 1 and 9to 1. (Emphasis supplied)

25 Under the United Nations Charter, use of force is no longer a validmeans of acquiring territory.


rights or enacting statutes to comply with the treaty’s terms todelimit maritime zones and continental shelves. Territorialclaims to land features are outside UNCLOS III, and are insteadgoverned by the rules on general international law.26

RA No. 9522’s Use of the Frameworkof Regime of Islands to Determine theMaritime Zones of the KIG and theScarborough Shoal, not Inconsistentwith the Philippines’ Claim of SovereigntyOver these Areas

Petitioners next submit that RA No. 9522’s use of UNCLOS III’sregime of islands framework to draw the baselines, and tomeasure the breadth of the applicable maritime zones of theKIG, “weakens our territorial claim” over that area.27 Petitionersadd that the KIG’s (and Scarborough Shoal’s) exclusion from thePhilippine archipelagic baselines results in the loss of “about15,000 square nautical miles of territorial waters,” prejudicingthe livelihood of subsistence fishermen.28 A comparison of theconfiguration of the baselines drawn under RA No. 3046 and RANo. 9522 and the extent of maritime space encompassed byeach law, coupled with a reading of the text of RA No. 9522 andits congressional deliberations, vis-à-vis the Philippines’obligations under UNCLOS III, belie this view.

The configuration of the baselines drawn under RA No. 3046and RA No. 9522 shows that RA No. 9522 merely followed thebasepoints mapped by RA No. 3046, save for at least ninebasepoints that RA No. 9522 skipped to optimize the location ofbasepoints and adjust the length of one baseline (and thuscomply with UNCLOS III’s limitation on the maximum length ofbaselines). Under RA No. 3046, as under RA No. 9522, the KIGand the Scarborough Shoal lie outside of the baselines drawn26 The last paragraph of the preamble of UNCLOS III states that

“matters not regulated by this Convention continue to be governedby the rules and principles of general international law.”

27 Rollo, p. 51.28 Id. at 51–52, 64–66.


around the Philippine archipelago. This undeniable cartographicfact takes the wind out of petitioners’ argument branding RANo. 9522 as a statutory renunciation of the Philippines’ claimover the KIG, assuming that baselines are relevant for thispurpose.

Petitioners’ assertion of loss of “about 15,000 squarenautical miles of territorial waters” under RA No. 9522 is similarlyunfounded both in fact and law. On the contrary, RA No. 9522,by optimizing the location of basepoints, increased thePhilippines’ total maritime space (covering its internal waters,territorial sea and exclusive economic zone) by 145,216 squarenautical miles, as shown in the table below:29

29 Based on figures respondents submitted in their Comment (Id. at182).

Extent of maritime area

using RA No. 3046, as

amended, taking into

account the Treaty of

Paris’ delimitation (in

square nautical miles)

Extent of maritime area

using RA No. 9522,

taking into account

UNCLOS III (in square

nautical miles)

Internal or

archipelagic

waters

166,858 171,435

Territorial

Sea 274,136 32,106

Exclusive

Economic

Zone

382,669

TOTAL 440,994 586,210


Thus, as the map below shows, the reach of the exclusiveeconomic zone drawn under RA No. 9522 even extends waybeyond the waters covered by the rectangular demarcationunder the Treaty of Paris. Of course, where there areoverlapping exclusive economic zones of opposite or adjacentStates, there will have to be a delineation of maritimeboundaries in accordance with UNCLOS III.30

30 Under Article 74.


Further, petitioners’ argument that the KIG now lies outsidePhilippine territory because the baselines that RA No. 9522draws do not enclose the KIG is negated by RA No. 9522 itself.Section 2 of the law commits to text the Philippines’ continuedclaim of sovereignty and jurisdiction over the KIG and theScarborough Shoal:

SEC. 2. The baselines in the following areas over which thePhilippines likewise exercises sovereignty and jurisdiction shallbe determined as “Regime of Islands” under the Republic ofthe Philippines consistent with Article 121 of the UnitedNations Convention on the Law of the Sea (UNCLOS):

(a) The Kalayaan Island Group as constituted underPresidential Decree No. 1596 and

(b) Bajo de Masinloc, also known as Scarborough Shoal.(Emphasis supplied)

Had Congress in RA No. 9522 enclosed the KIG and theScarborough Shoal as part of the Philippine archipelago, adverselegal effects would have ensued. The Philippines would havecommitted a breach of two provisions of UNCLOS III. First, Article47(3) of UNCLOS III requires that “[t]he drawing of such baselinesshall not depart to any appreciable extent from the generalconfiguration of the archipelago.” Second, Article 47(2) ofUNCLOS III requires that “the length of the baselines shall notexceed 100 nautical miles,” save for three percent (3%) of thetotal number of baselines which can reach up to 125 nauticalmiles.31

Although the Philippines has consistently claimedsovereignty over the KIG32 and the Scarborough Shoal for severaldecades, these outlying areas are located at an appreciabledistance from the nearest shoreline of the Philippinearchipelago,33 such that any straight baseline loped around them31 See note 7.32 Presidential Decree No. 1596 classifies the KIG as a municipality

of Palawan.33 KIG lies around 80 nautical miles west of Palawan while

Scarborough Shoal is around 123 nautical west of Zambales.


from the nearest basepoint will inevitably “depart to anappreciable extent from the general configuration of thearchipelago.”

The principal sponsor of RA No. 9522 in the Senate, SenatorMiriam Defensor-Santiago, took pains to emphasize theforegoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest ofthe world call[] the Spratlys and the Scarborough Shoal areoutside our archipelagic baseline because if we put them insideour baselines we might be accused of violating the provision ofinternational law which states: “The drawing of such baselineshall not depart to any appreciable extent from the generalconfiguration of the archipelago.” So sa loob ng ating baseline,dapat magkalapit ang mga islands. Dahil malayo angScarborough Shoal, hindi natin masasabing malapit sila sa atinalthough we are still allowed by international law to claim themas our own.

This is called contested islands outside our configuration.We see that our archipelago is defined by the orange linewhich [we] call[] archipelagic baseline. Ngayon, tingnan ninyoang maliit na circle doon sa itaas, that is Scarborough Shoal,itong malaking circle sa ibaba, that is Kalayaan Group or theSpratlys. Malayo na sila sa ating archipelago kaya kung ilihispa natin ang dating archipelagic baselines para lamang masamaitong dalawang circles, hindi na sila magkalapit at baka hindina tatanggapin ng United Nations because of the rule that itshould follow the natural configuration of the archipelago.34

(Emphasis supplied)

Similarly, the length of one baseline that RA No. 3046 drewexceeded UNCLOS III’s limits. The need to shorten this baseline,and in addition, to optimize the location of basepoints usingcurrent maps, became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enablethe Philippines to draw the outer limits of its maritime zonesincluding the extended continental shelf in the manner

34 Journal, Senate 14th Congress 44th Session 1416 (January 27, 2009).


provided by Article 47 of [UNCLOS III]. As defined by RA No.3046, as amended by RA No. 5446, the baselines suffer fromsome technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middleof 3 Rock Awash to Tongquil Point) is 140.06 nauticalmiles x x x. This exceeds the maximum length allowedunder Article 47(2) of the [UNCLOS III], which states that“The length of such baselines shall not exceed 100 nauticalmiles, except that up to 3 percent of the total number ofbaselines enclosing any archipelago may exceed thatlength, up to a maximum length of 125 nautical miles.”

2. The selection of basepoints is not optimal. At least 9basepoints can be skipped or deleted from the baselinessystem. This will enclose an additional 2,195 nauticalmiles of water.

3. Finally, the basepoints were drawn from maps existing in1968, and not established by geodetic survey methods.Accordingly, some of the points, particularly along thewest coasts of Luzon down to Palawan were later found tobe located either inland or on water, not on low-waterline and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines’ claim overthe KIG and the Scarborough Shoal, Congress’ decision to classifythe KIG and the Scarborough Shoal as “‘Regime[s] of Islands’under the Republic of the Philippines consistent with Article121"36 of UNCLOS III manifests the Philippine State’s responsibleobservance of its pacta sunt servanda obligation under UNCLOSIII. Under Article 121 of UNCLOS III, any “naturally formed areaof land, surrounded by water, which is above water at high tide,”such as portions of the KIG, qualifies under the category of“regime of islands,” whose islands generate their ownapplicable maritime zones.37

35 Rollo, p. 159.36 Section 2, RA No. 9522.37 Article 121 provides: “Regime of islands.

1. An island is a naturally formed area of land, surroundedby water, which is above water at high tide.


Statutory Claim Over Sabah underRA No. 5446 Retained

Petitioners’ argument for the invalidity of RA No. 9522 for itsfailure to textualize the Philippines’ claim over Sabah in NorthBorneo is also untenable. Section 2 of RA No. 5446, which RANo. 9522 did not repeal, keeps open the door for drawing thebaselines of Sabah:

SEC. 2. The definition of the baselines of the territorial sea ofthe Philippine Archipelago as provided in this Act is withoutprejudice to the delineation of the baselines of the territorialsea around the territory of Sabah, situated in North Borneo,over which the Republic of the Philippines has acquireddominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA No. 9522 notIncompatible with the Constitution’sDelineation of Internal Waters

As their final argument against the validity of RA No. 9522,petitioners contend that the law unconstitutionally “converts”internal waters into archipelagic waters, hence subjecting thesewaters to the right of innocent and sea lanes passage underUNCLOS III, including overflight. Petitioners extrapolate thatthese passage rights indubitably expose Philippine internalwaters to nuclear and maritime pollution hazards, in violationof the Constitution.38

2. Except as provided for in paragraph 3, the territorial sea,the contiguous zone, the exclusive economic zone and thecontinental shelf of an island are determined inaccordance with the provisions of this Conventionapplicable to other land territory.

3. Rocks which cannot sustain human habitation oreconomic life of their own shall have no exclusiveeconomic zone or continental shelf.”

38 Rollo, pp. 56–57, 60–64.


39 Paragraph 2, Section 2, Article XII of the Constitution uses the term“archipelagic waters” separately from “territorial sea.” UnderUNCLOS III, an archipelagic State may have internal waters – suchas those enclosed by closing lines across bays and mouths ofrivers. See Article 50, UNCLOS III. Moreover, Article 8(2) of UNCLOSIII provides:

Where the establishment of a straight baseline inaccordance with the method set forth in Article 7 has theeffect of enclosing as internal waters areas which had notpreviously been considered as such, a right of innocentpassage as provided in this Convention shall exist in thosewaters. (Emphasis supplied)

Whether referred to as Philippine “internal waters” underArticle I of the Constitution39 or as “archipelagic waters” underUNCLOS III (Article 49[1]), the Philippines exercises sovereigntyover the body of water lying landward of the baselines, includingthe air space over it and the submarine areas underneath.UNCLOS III affirms this:

ART. 49. Legal status of archipelagic waters, of the air spaceover archipelagic waters and of their bed and subsoil.

1. The sovereignty of an archipelagic State extends to thewaters enclosed by the archipelagic baselines drawn inaccordance with Article 47, described as archipelagicwaters, regardless of their depth or distance from thecoast.

2. This sovereignty extends to the air space over thearchipelagic waters, as well as to their bed and subsoil,and the resources contained therein.

x x x x

4. The regime of archipelagic sea lanes passage establishedin this Part shall not in other respects affect the status ofthe archipelagic waters, including the sea lanes, or theexercise by the archipelagic State of its sovereignty oversuch waters and their air space, bed and subsoil, and theresources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude theoperation of municipal and international law norms subjecting


40 Mandated under Articles 52 and 53 of UNCLOS III:

ART. 52. Right of innocent passage.1. Subject to Article 53 and without prejudice to Article 50,

ships of all States enjoy the right of innocent passagethrough archipelagic waters, in accordance with Part II,section 3.

2. The archipelagic State may, without discrimination in formor in fact among foreign ships, suspend temporarily inspecified areas of its archipelagic waters the innocentpassage of foreign ships if such suspension is essentialfor the protection of its security. Such suspension shalltake effect only after having been duly published.(Emphasis supplied)

ART. 53. Right of archipelagic sea lanes passage.1. An archipelagic State may designate sea lanes and air

routes thereabove, suitable for the continuous andexpeditious passage of foreign ships and aircraft throughor over its archipelagic waters and the adjacent territorialsea.

2. All ships and aircraft enjoy the right of archipelagic sealanes passage in such sea lanes and air routes.

3. Archipelagic sea lanes passage means the exercise inaccordance with this Convention of the rights of navigationand overflight in the normal mode solely for the purposeof continuous, expeditious and unobstructed transitbetween one part of the high seas or an exclusiveeconomic zone and another part of the high seas or anexclusive economic zone.

4. Such sea lanes and air routes shall traverse thearchipelagic waters and the adjacent territorial sea andshall include all normal passage routes used as routesfor international navigation or overflight through or overarchipelagic waters and, within such routes, so far asships are concerned, all normal navigational channels,

the territorial sea or archipelagic waters to necessary, if notmarginal, burdens in the interest of maintaining unimpeded,expeditious international navigation, consistent with theinternational law principle of freedom of navigation. Thus,domestically, the political branches of the Philippinegovernment, in the competent discharge of their constitutionalpowers, may pass legislation designating routes within thearchipelagic waters to regulate innocent and sea lanes passage.40


provided that duplication of routes of similar conveniencebetween the same entry and exit points shall not benecessary.

5. Such sea lanes and air routes shall be defined by a seriesof continuous axis lines from the entry points of passageroutes to the exit points. Ships and aircraft in archipelagicsea lanes passage shall not deviate more than 25 nauticalmiles to either side of such axis lines during passage,provided that such ships and aircraft shall not navigatecloser to the coasts than 10 percent of the distancebetween the nearest points on islands bordering the sealane.

6. An archipelagic State which designates sea lanes underthis article may also prescribe traffic separation schemesfor the safe passage of ships through narrow channels insuch sea lanes.

7. An archipelagic State may, when circumstances require,after giving due publicity thereto, substitute other sealanes or traffic separation schemes for any sea lanes ortraffic separation schemes previously designated orprescribed by it.

8. Such sea lanes and traffic separation schemes shallconform to generally accepted international regulations.

9. In designating or substituting sea lanes or prescribing orsubstituting traffic separation schemes, an archipelagicState shall refer proposals to the competent internationalorganization with a view to their adoption. Theorganization may adopt only such sea lanes and trafficseparation schemes as may be agreed with the archipelagicState, after which the archipelagic State may designate,prescribe or substitute them.

10. The archipelagic State shall clearly indicate the axis ofthe sea lanes and the traffic separation schemesdesignated or prescribed by it on charts to which duepublicity shall be given.

11. Ships in archipelagic sea lanes passage shall respectapplicable sea lanes and traffic separation schemesestablished in accordance with this article.

12. If an archipelagic State does not designate sea lanes orair routes, the right of archipelagic sea lanes passagemay be exercised through the routes normally used forinternational navigation. (Emphasis supplied)

41 Namely, House Bill No. 4153 and Senate Bill No. 2738, identicallytitled “AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINEARCHIPELAGIC WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS

Indeed, bills drawing nautical highways for sea lanes passageare now pending in Congress.41


AND AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGHTHE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE ASSOCIATED PROTECTIVEMEASURES THEREIN.”

42 The relevant provision of UNCLOS III provides:ART. 17. Right of innocent passage.Subject to this Convention, ships of all States, whether coastalor landlocked, enjoy the right of innocent passage through theterritorial sea. (Emphasis supplied)ART. 19. Meaning of innocent passage.1. Passage is innocent so long as it is not prejudicial to the

peace, good order or security of the coastal State. Suchpassage shall take place in conformity with thisConvention and with other rules of international law.

2. Passage of a foreign ship shall be considered to beprejudicial to the peace, good order or security of thecoastal State if in the territorial sea it engages in any ofthe following activities:(a) any threat or use of force against the sovereignty,

territorial integrity or political independence of thecoastal State, or in any other manner in violation ofthe principles of international law embodied in theCharter of the United Nations;

(b) any exercise or practice with weapons of any kind;(c) any act aimed at collecting information to the

prejudice of the defence or security of the coastalState;

(d) any act of propaganda aimed at affecting the defenceor security of the coastal State;

(e) the launching, landing or taking on board of anyaircraft;

(f) the launching, landing or taking on board of anymilitary device;

(g) the loading or unloading of any commodity, currencyor person contrary to the customs, fiscal, immigrationor sanitary laws and regulations of the coastal State;

(h) any act of willful and serious pollution contrary tothis Convention;

In the absence of municipal legislation, international lawnorms, now codified in UNCLOS III, operate to grant innocentpassage rights over the territorial sea or archipelagic waters,subject to the treaty’s limitations and conditions for theirexercise.42 Significantly, the right of innocent passage is a


(i) any fishing activities;(j) the carrying out of research or survey activities;(k) any act aimed at interfering with any systems of

communication or any other facilities or installationsof the coastal State;

(l) any other activity not having a direct bearing onpassage

ART. 21. Laws and regulations of the coastal State relating toinnocent passage.1. The coastal State may adopt laws and regulations, in

conformity with the provisions of this Convention andother rules of international law, relating to innocentpassage through the territorial sea, in respect of all orany of the following:(a) the safety of navigation and the regulation of maritime

traffic;(b) the protection of navigational aids and facilities and

other facilities or installations;(c) the protection of cables and pipelines;(d) the conservation of the living resources of the sea;(e) the prevention of infringement of the fisheries laws

and regulations of the coastal State;(f) the preservation of the environment of the coastal

State and the prevention, reduction and control ofpollution thereof;

(g) marine scientific research and hydrographic surveys;(h) the prevention of infringement of the customs, fiscal,

immigration or sanitary laws and regulations of thecoastal State.

2. Such laws and regulations shall not apply to the design,construction, manning or equipment of foreign shipsunless they are giving effect to generally acceptedinternational rules or standards.

3. The coastal State shall give due publicity to all such lawsand regulations.

4. Foreign ships exercising the right of innocent passagethrough the territorial sea shall comply with all such lawsand regulations and all generally accepted internationalregulations relating to the prevention of collisions at sea.

43 The right of innocent passage through the territorial sea appliesonly to ships and not to aircrafts (Article 17, UNCLOS III). The right

customary international law,43 thus automatically incorporated


of innocent passage of aircrafts through the sovereign territory ofa State arises only under an international agreement. In contrast,the right of innocent passage through archipelagic waters appliesto both ships and aircrafts (Article 53(12), UNCLOS III).

44 Following Section 2, Article II of the Constitution: “SEC. 2. ThePhilippines renounces war as an instrument of national policy,adopts the generally accepted principles of international law aspart of the law of the land and adheres to the policy of peace,equality, justice, freedom, cooperation, and amity with all nations.”(Emphasis supplied)

45 “Archipelagic sea lanes passage is essentially the same as transitpassage through straits” to which the territorial sea of continentalcoastal State is subject. R.R. CHURABILL AND A.V. LOWE, THE LAW OF THE SEA

127 (1999).46 Falling under Article 121 of UNCLOS III (see note 37).

in the corpus of Philippine law.44 No modern State can validlyinvoke its sovereignty to absolutely forbid innocent passagethat is exercised in accordance with customary internationallaw without risking retaliatory measures from the internationalcommunity.

The fact that for archipelagic States, their archipelagic watersare subject to both the right of innocent passage and sea lanespassage45 does not place them in lesser footing vis-à-viscontinental coastal States which are subject, in their territorialsea, to the right of innocent passage and the right of transitpassage through international straits. The imposition of thesepassage rights through archipelagic waters under UNCLOS IIIwas a concession by archipelagic States, in exchange for theirright to claim all the waters landward of their baselines,regardless of their depth or distance from the coast, asarchipelagic waters subject to their territorial sovereignty. Moreimportantly, the recognition of archipelagic States’ archipelagoand the waters enclosed by their baselines as one cohesiveentity prevents the treatment of their islands as separateislands under UNCLOS III.46 Separate islands generate their ownmaritime zones, placing the waters between islands separatedby more than 24 nautical miles beyond the States’ territorial


47 Within the exclusive economic zone, other States enjoy the followingrights under UNCLOS III:

ART. 58. Rights and duties of other States in the exclusiveeconomic zone.

1. In the exclusive economic zone, all States, whether coastalor landlocked, enjoy, subject to the relevant provisions ofthis Convention, the freedoms referred to in Article 87 ofnavigation and overflight and of the laying of submarinecables and pipelines, and other internationally lawfuluses of the sea related to these freedoms, such as thoseassociated with the operation of ships, aircraft andsubmarine cables and pipelines, and compatible with theother provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of internationallaw apply to the exclusive economic zone in so far as theyare not incompatible with this Part.

x x x x

Beyond the exclusive economic zone, other States enjoy thefreedom of the high seas, defined under UNCLOS III as follows:

ART. 87. Freedom of the high seas.

1. The high seas are open to all States, whether coastal orlandlocked. Freedom of the high seas is exercised underthe conditions laid down by this Convention and by otherrules of international law. It comprises, inter alia, bothfor coastal and landlocked States:

(a) freedom of navigation;

(b) freedom of overflight;

(c) freedom to lay submarine cables and pipelines,subject to Part VI;

sovereignty, subjecting these waters to the rights of otherStates under UNCLOS III.47

Petitioners’ invocation of non-executory constitutionalprovisions in Article II (Declaration of Principles and State


(d) freedom to construct artificial islands and otherinstallations permitted under international law,subject to Part VI;

(e) freedom of fishing, subject to the conditions laid downin Section 2;

(f) freedom of scientific research, subject to Parts VI andXIII.

2. These freedoms shall be exercised by all States with due regardfor the interests of other States in their exercise of the freedomof the high seas, and also with due regard for the rights underthis Convention with respect to activities in the Area.

48 See note 13.49 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Tañada v.

Angara, 338 Phil. 546, 580–581 (1997).50 G.R. No. 101083, July 30, 1993, 224 SCRA 792.51 “The State shall protect the nation’s marine wealth in its archipelagic

waters, territorial sea, and exclusive economic zone, and reserveits use and enjoyment exclusively to Filipino citizens.”

52 “The State shall protect the rights of subsistence fishermen,especially of local communities, to the preferential use of thecommunal marine and fishing resources, both inland and offshore.It shall provide support to such fishermen through appropriate

Policies)48 must also fail. Our present state of jurisprudenceconsiders the provisions in Article II as mere legislative guides,which, absent enabling legislation, “do not embody judiciallyenforceable constitutional rights x x x.”49 Article II provisionsserve as guides in formulating and interpreting implementinglegislation, as well as in interpreting executory provisions ofthe Constitution. Although Oposa v. Factoran50 treated the rightto a healthful and balanced ecology under Section 16 of ArticleII as an exception, the present petition lacks factual basis tosubstantiate the claimed constitutional violation. The otherprovisions petitioners cite, relating to the protection of marinewealth (Article XII, Section 2, paragraph 251) and subsistencefishermen (Article XIII, Section 752), are not violated by RA No.9522.


In fact, the demarcation of the baselines enables thePhilippines to delimit its exclusive economic zone, reservingsolely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineationbinds the international community since the delineation is instrict observance of UNCLOS III. If the maritime delineation iscontrary to UNCLOS III, the international community will ofcourse reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like thePhilippines. UNCLOS III creates a sui generis maritime space –the exclusive economic zone – in waters previously part of thehigh seas. UNCLOS III grants new rights to coastal States toexclusively exploit the resources found within this zone up to200 nautical miles.53 UNCLOS III, however, preserves thetraditional freedom of navigation of other States that attachedto this zone beyond the territorial sea before UNCLOS III.

RA NO. 9522 AND THE PHILIPPINES’ MARITIME ZONES

Petitioners hold the view that, based on the permissive text ofUNCLOS III, Congress was not bound to pass RA No. 9522.54 Wehave looked at the relevant provision of UNCLOS III55 and we

technology and research, adequate financial, production, andmarketing assistance, and other services. The State shall alsoprotect, develop, and conserve such resources. The protection shallextend to offshore fishing grounds of subsistence fishermen againstforeign intrusion. Fishworkers shall receive a just share from theirlabor in the utilization of marine and fishing resources.”

53 This can extend up to 350 nautical miles if the coastal State provesits right to claim an extended continental shelf (see UNCLOS III,Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77).

54 Rollo, pp. 67–69.55 Article 47(1) provides: “An archipelagic State may draw straight

archipelagic baselines joining the outermost points of theoutermost islands and drying reefs of the archipelago providedthat within such baselines are included the main islands and anarea in which the ratio of the area of the water to the area of theland, including atolls, is between 1 to 1 and 9 to 1.” (Emphasissupplied)


find petitioners’ reading plausible. Nevertheless, theprerogative of choosing this option belongs to Congress, not tothis Court. Moreover, the luxury of choosing this option comesat a very steep price. Absent an UNCLOS III compliant baselineslaw, an archipelagic State like the Philippines will find itselfdevoid of internationally acceptable baselines from where thebreadth of its maritime zones and continental shelf is measured.This is recipe for a two-fronted disaster: first, it sends an openinvitation to the seafaring powers to freely enter and exploitthe resources in the waters and submarine areas around ourarchipelago; and second, it weakens the country’s case in anyinternational dispute over Philippine maritime space. Theseare consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law forthe Philippine archipelago and adjacent areas, as embodied inRA No. 9522, allows an internationally-recognized delimitationof the breadth of the Philippines’ maritime zones andcontinental shelf. RA No. 9522 is therefore a most vital step onthe part of the Philippines in safeguarding its maritime zones,consistent with the Constitution and our national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.

Corona (C.J.), Leonardo-De Castro, Brion, Peralta, Bersamin, DelCastillo, Villarama, Jr., Mendoza and Sereno, JJ., concur.

Velasco, Jr., J., Pls. See Concurring Opinion

Abad., J., I certify that Mr. Justice Abad left his concurring vote.

Perez, J., On Leave.


CONCURRING OPINION

Velasco, Jr., J.:

I concur with the ponencia and add the following complementaryarguments and observations:

A statute is a product of hard work and earnest studies ofCongress to ensure that no constitutional provision, prescriptionor concept is infringed. Withal, before a law, in an appropriateproceeding, is nullified, an unequivocal breach of, or a clearconflict with, the Constitution must be demonstrated in such away as to leave no doubt in the mind of the Court.1 In the sametoken, if a law runs directly afoul of the Constitution, the Court’sduty on the matter should be clear and simple: Pursuant to itsjudicial power and as final arbiter of all legal questions,2 itshould strike such law down, however laudable its purpose/smight be and regardless of the deleterious effect such actionmay carry in its wake.

Challenged in these proceedings is the constitutionality ofRepublic Act (RA No. 9522) entitled “An Act to Amend CertainProvisions of [RA] 3046, as Amended by [RA] 5446 to Define theArchipelagic Baselines of the Philippines and for Other Purposes.”For perspective, RA No. 3046, “An Act to Define the Baselines ofthe Territorial Sea of the Philippines, was enacted in 1961 tocomply with the United Nations Convention on the Law of theSea (UNCLOS) I. Eight years later, RA No. 5446 was enacted toamend typographical errors relating to coordinates in RA No.3046. The latter law also added a provision asserting Philippinesovereignty over Sabah.1 League of Cities of the Philippines v. Commission on Elections, G.R.

No. 176951, December 21, 2009, 608 SCRA 636.2 Under Article VIII, Section 5 of the Constitution, the Supreme Court

is empowered to review, revise, reverse, modify, or affirm on appealor certiorari as the law or the Rules of Court may provide, finaljudgments and orders of lower courts in: all cases in which theConstitutionality or validity of any treaty, international or executiveagreement, law, presidential decree, proclamation, order,instruction, ordinance, or regulation is in question. (Emphasissupplied)

47MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION

As its title suggests, RA No. 9522 delineates archipelagicbaselines of the country, amending in the process the oldbaselines law, RA No. 3046. Everybody is agreed that RA No.9522 was enacted in response to the country’s commitment toconform to some 1982 Law of the Sea Convention (LOSC) orUNCLOS III provisions to define new archipelagic baselinesthrough legislation, the Philippines having signed3 andeventually ratified4 this multilateral treaty. The Court can takejudicial notice that RA No. 9522 was registered and depositedwith the UN on April 4, 2009.

As indicated in its Preamble,5 1982 LOSC aims, among otherthings, to establish, with due regard for the sovereignty of allStates, “a legal order for the seas and oceans which will facilitateinternational communication, and will promote the peacefuluses of the seas and oceans.” One of the measures to attain theorder adverted to is to have a rule on baselines. Of particularrelevance to the Philippines, as an archipelagic state, is Article47 of UNCLOS III which deals with baselines:

1. An archipelagic State may draw straight archipelagicbaselines joining the outermost points of the outermostislands and drying reefs of the archipelago provided thatwithin such baselines are included the main islands andan area in which the ratio of the area of the water to thearea of the land, including atolls, is between 1 to 1 and 9to 1.

2. The length of such baseline shall not exceed 100 nauticalmiles, except that up to 3 percent of the total number ofbaselines enclosing any archipelago may exceed thatlength, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to anyappreciable extent from the general configuration of thearchipelago.

3 December 10, 1982.4 May 8, 1984.5 Available on <http://www.un.org/Depts/los/convention_agreements/

texts/unclos/closindx.htm> (visited July 28, 2011).


x x x x

9. The archipelagic State shall give due publicity to suchcharts or lists of geographical coordinates and shalldeposit a copy of each such chart or list with the Secretary-General of the United Nations.6 (Emphasis added)

To obviate, however, the possibility that certain UNCLOS IIIbaseline provisions would, in their implementation, undermineits sovereign and/or jurisdictional interests over what itconsiders its territory,7 the Philippines, when it signed UNCLOSIII on December 10, 1982, made the following “Declaration” tosaid treaty:

The Government of the Republic of the Philippines [GRP] herebymanifests that in signing the 1982 United Nations Conventionon the Law of the Sea, it does so with the understandingsembodied in this declaration, made under the provisions ofArticle 310 of the Convention, to wit:

The signing of the Convention by the [GRP] shall not in anymanner impair or prejudice the sovereign rights of the [RP]under and arising from the Constitution of the Philippines;

Such signing shall not in any manner affect the sovereign rightsof the [RP] as successor of the United States of America [USA],under and arising out of the Treaty of Paris between Spain andthe United States of America of December 10, 1898, and theTreaty of Washington between the [USA] and Great Britain ofJanuary 2, 1930;

x x x x

Such signing shall not in any manner impair or prejudice thesovereignty of the [RP] over any territory over which itexercises sovereign authority, such as the Kalayaan Islands, andthe waters appurtenant thereto;

The Convention shall not be construed as amending in anymanner any pertinent laws and Presidential Decrees or

6 UNCLOS, Article 47, December 10, 1982.7 J. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A

COMMENTARY 57 (2003).


Proclamations of the Republic of the Philippines. The [GRP]maintains and reserves the right and authority to make anyamendments to such laws, decrees or proclamations pursuantto the provisions of the Philippine Constitution;

The provisions of the Convention on archipelagic passagethrough sea lanes do not nullify or impair the sovereignty ofthe Philippines as an archipelagic state over the sea lanesand do not deprive it of authority to enact legislation to protectits sovereignty independence and security;

The concept of archipelagic waters is similar to the concept ofinternal waters under the Constitution of the Philippines, andremoves straits connecting these waters with the economiczone or high sea from the rights of foreign vessels to transitpassage for international navigation.8 (Emphasis added)

Petitioners challenge the constitutionality of RA No. 9522on the principal ground that the law violates Section 1, Article Iof the 1987 Constitution on national territory which states:

SECTION 1. The national territory comprises the Philippinearchipelago, with all the islands and waters embraced therein,and all other territories over which the Philippines hassovereignty or jurisdiction, consisting of its terrestrial, fluvialand 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 ofthe archipelago, regardless of their breadth and dimensions,form part of the internal waters of the Philippines. (Emphasissupplied)

According to Fr. Joaquin Bernas, S.J., himself a member ofthe 1986 Constitutional Commission which drafted the 1987Constitution, the aforequoted Section 1 on national territorywas “in substance a copy of its 1973 counterpart.”9 Article I ofthe 1973 Constitution reads:8 See J. Batongbacal, The Metes and Bounds of the Philippine National

Territory, An International Law and Policy Perspective, Supreme Courtof the Philippines, Philippine Judicial Academy Third DistinguishedLecture, Far Eastern University, June 27, 2008.

9 J. Bernas, supra note 7, at 10.


SECTION 1. The national territory comprises the Philippinearchipelago, with all the islands and waters embraced therein,and all other territories belonging to the Philippines by historicright or legal title, including the territorial sea, the air space,the subsoil, the insular shelves, and other submarine areasover which the Philippines has sovereignty or jurisdiction.The waters around, between, and connecting the islands ofthe archipelago, regardless of their breadth and dimensions,form part of the internal waters of the Philippines. (Emphasisadded.)

As may be noted both constitutions speak of the “Philippinearchipelago,” and, via the last sentence of their respectiveprovisions, assert the country’s adherence to the “archipelagicprinciple.” Both constitutions divide the national territory intotwo main groups: (1) the Philippine archipelago and (2) otherterritories belonging to the Philippines. So what or where isPhilippine archipelago contemplated in the 1973 and 1987Constitutions then? Fr. Bernas answers the poser in thefollowing wise:

Article I of the 1987 Constitution cannot be fully understoodwithout reference to Article I of the 1973 Constitution. x x x

x x x x

x x x To understand [the meaning of national territory ascomprising the Philippine archipelago], one must look intothe evolution of [Art. I of the 1973 Constitution] from its firstdraft to its final form.

Section 1 of the first draft submitted by the Committee onNational Territory almost literally reproduced Article I of the1935 Constitution x x x. Unlike the 1935 version, however, thedraft designated the Philippines not simply as the Philippinesbut as “the Philippine archipelago.10 In response to thecriticism that the definition was colonial in tone x x x, thesecond draft further designated the Philippine archipelago,as the historic home of the Filipino people from its beginning.11

10 Citing Report No. 01 of the Committee on National Territory.11 Citing Report No. 02 of the Committee on National Territory.


After debates x x x, the Committee reported out a final draft,which became the initially approved version: “The nationalterritory consists of the Philippine archipelago which is theancestral home of the Filipino people and which is composedof all the islands and waters embraced therein x x x.”

What was the intent behind the designation of the Philippinesas an “archipelago”? x x x Asked by Delegate Roselller Lim(Zamboanga) where this archipelago was, Committee ChairmanQuintero answered that it was the area delineated in the Treatyof Paris. He said that objections to the colonial implication ofmentioning the Treaty of Paris was responsible for the omissionof the express mention of the Treaty of Paris.

Report No. 01 of the Committee on National Territory had infact been explicit in its delineation of the expanse of thisarchipelago. It said:

Now if we plot on a map the boundaries of thisarchipelago as set forth in the Treaty of Paris, a hugeor giant rectangle will emerge, measuring about 600miles in width and 1,200 miles in length. Inside thisgiant rectangle are the 7,100 islands comprising thePhilippine Islands. From the east coast of Luzon tothe eastern boundary of this huge rectangle in thePacific Ocean, there is a distance of over 300 miles.From the west coast of Luzon to the western boundaryof this giant rectangle in the China sea, there is adistance of over 150 miles.

When the [US] Government enacted the Jones Law, theHare-Hawes Cutting Law and the Tydings McDuffieLaw, it in reality announced to the whole world that itwas turning over to the Government of the PhilippineIslands an archipelago (that is a big body of waterstudded with islands), the boundaries of whicharchipelago are set forth in Article III of the Treaty ofParis. It also announced to the whole world that thewaters inside the giant rectangle belong to thePhilippines – that they are not part of the high seas.

When Spain signed the Treaty of Paris, in effect sheannounced to the whole world that she was ceding to


the [US] the Philippine archipelago x x x, that thisarchipelago was bounded by lines specified in thetreaty, and that the archipelago consisted of the hugebody of water inside the boundaries and the islandsinside said boundaries.

The delineation of the extent of the Philippine archipelago mustbe understood in the context of the modifications made bothby the Treaty of Washington of November 7, 1900, and of theConvention of January 12, 1930, in order to include the Islandsof Sibutu and of Cagayan de Sulu and the Turtle and MangseeIslands. However, x x x the definition of the archipelago didnot include the Batanes group[, being] outside the boundariesof the Philippine archipelago as set forth in the Treaty of Paris.In literal terms, therefore, the Batanes islands would comenot under the Philippine archipelago but under the phrase“all other territories belong to the Philippines.”12 x x x (Emphasisadded)

From the foregoing discussions on the deliberations of theprovisions on national territory, the following conclusion isabundantly evident: the “Philippine archipelago” of the 1987Constitution is the same “Philippine archipelago” referred toin Article I of the 1973 Constitution which in turn correspondsto the territory defined and described in Article 1 of the 1935Constitution,13 which pertinently reads:

SECTION 1. The Philippines comprises all the territory ceded tothe [US] by the Treaty of Paris concluded between the [US] andSpain on the tenth day of December, [1898], the limits of whichare set forth in Article III of said treaty, together with all theislands in the treaty concluded at Washington, between the[US] and Spain on November [7, 1900] and the treaty concludedbetween the [US] and Great Britain x x x.

While the Treaty of Paris is not mentioned in both the 1973and 1987 Constitutions, its mention, so the nationalisticarguments went, being “a repulsive reminder of the indignity

12 J. Bernas, supra note 7, at 11–14.13 Id. at 14.


of our colonial past,”14 it is at once clear that the Treaty of Parishad been utilized as key reference point in the definition ofthe national territory.

On the other hand, the phrase “all other territories overwhich the Philippines has sovereignty or jurisdiction,” found inthe 1987 Constitution, which replaced the deleted phrase “allterritories belonging to the Philippines by historic right or legaltitle”15 found in the 1973 Constitution, covers areas linked tothe Philippines with varying degrees of certainty.16 Under thiscategory would fall: (a) Batanes, which then 1971 ConventionDelegate Eduardo Quintero, Chairperson of the Committee onNational Territory, described as belonging to the Philippines inall its history;17 (b) Sabah, over which a formal claim had beenfiled, the so-called Freedomland (a group of islands known asSpratleys); and (c) any other territory, over which thePhilippines had filed a claim or might acquire in the futurethrough recognized modes of acquiring territory.18 As an authorputs it, the deletion of the words “by historic right or legal title”is not to be interpreted as precluding future claims to areasover which the Philippines does not actually exercisesovereignty.19

Upon the foregoing perspective and going into specifics,petitioners would have RA No. 9522 stricken down asunconstitutional for the reasons that it deprives the Philippinesof what has long been established as part and parcel of itsnational territory under the Treaty of Paris, as supplemented

14 Id. at 9; citing Speech, Session February 15, 1972, of DelegatesAmanio Sorongon, et al.

15 The history of this deleted phrase goes back to the last clause ofArticle I of the 1935 Constitution which included “all territory overwhich the present Government of the Philippine Islands exercisesjurisdiction. See J. Bernas, supra note 7, at 14.

16 J. Bernas, supra note 7, at 16.17 Id.; citing deliberations of the February 17, 1972 Session.18 Id.19 De Leon, PHILIPPINE CONSTITUTION 62 (2011).


by the aforementioned 1900 Treaty of Washington or, to thesame effect, revises the definition on or dismembers thenational territory. Pushing their case, petitioners argue that theconstitutional definition of the national territory cannot beremade by a mere statutory act.20 As another point, petitionersparlay the theory that the law in question virtually weakensthe country’s territorial claim over the Kalayaan Island Group(KIG) and Sabah, both of which come under the category of“other territories” over the Philippines has sovereignty orjurisdiction. Petitioners would also assail the law on groundsrelated to territorial sea lanes and internal waters transitpassage by foreign vessels.

It is remarkable that petitioners could seriously argue thatRA No. 9522 revises the Philippine territory as defined in theConstitution, or worse, constitutes an abdication of territory.

It cannot be over-emphasized enough that RA No. 9522 is abaseline law enacted to implement the 1982 LOSC, which inturn seeks to regulate and establish an orderly sea use rightsover maritime zones. Or as the ponencia aptly states, RA No.9522 aims to mark out specific base points along the Philippinecoast from which baselines are drawn to serve as starting pointsto measure the breadth of the territorial sea and maritimezones.21 The baselines are set to define the sea limits of a state,be it coastal or archipelagic, under the UNCLOS III regime. Bysetting the baselines to conform to the prescriptions of UNCLOSIII, RA No. 9522 did not surrender any territory, as petitionerswould insist at every turn, for UNCLOS III is concerned withsetting order in the exercise of sea-use rights, not theacquisition or cession of territory. And let it be noted that underUNCLOS III, it is recognized that countries can have territoriesoutside their baselines. Far from having a dismembering effect,then, RA No. 9522 has in a limited but real sense increased thecountry’s maritime boundaries. How this situation comes about

20 Petition, pp. 4–5.21 Article 48 of UNCLOS III provides that the breadth of the territorial

sea, the contiguous zone, the exclusive economic zone and thecontinental shelf shall be measured from the archipelagic baselinedrawn in accordance with Article 47.


was extensively explained by then Minister of State and headof the Philippine delegation to UNCLOS III Arturo Tolentino inhis sponsorship speech22 on the concurrence of the BatasangPambansa with the LOSC:

x x x x

Then, we should consider, Mr. Speaker, that under thearchipelagic principle, the whole area inside the archipelagicbase lines become a unified whole and the waters between theislands which formerly were regarded by international law asopen or international seas now become waters under thecomplete sovereignty of the Filipino people. In this light therewould be an additional area of 141,800 square nautical milesinside the baselines that will be recognized by internationallaw as Philippine waters, equivalent to 45,351,050 hectares.These gains in the waters of the sea, 45,211,225 hectaresoutside the baselines and 141,531,000 hectares inside thebase lines, total 93,742,275 hectares as a total gain in thewaters under Philippine jurisdiction.

From a pragmatic standpoint, therefore, the advantage to ourcountry and people not only in terms of the legal unificationof land and waters of the archipelago in the light ofinternational law, but also in terms of the vast resources thatwill come under the dominion and jurisdiction of the Republicof the Philippines, your Committee on Foreign Affairs does nothesitate to ask this august Body to concur in the Conventionby approving the resolution before us today.

May I say it was the unanimous view of delegations at theConference on the Law of the Sea that archipelagos are amongthe biggest gainers or beneficiaries under the Convention onthe Law of the Sea.

Lest it be overlooked, the constitutional provision onnational territory, as couched, is broad enough to encompassRA No. 9522’s definition of the archipelagic baselines. Toreiterate, the laying down of baselines is not a mode of acquiringor asserting ownership a territory over which a state exercises22 R.P. Lotilla, THE PHILIPPINE NATIONAL TERRITORY: A COLLECTION OF RELATED DOCUMENTS

513–517 (1995); citing Batasang Pambansa, Acts and Resolution,6th Regular Session.


sovereignty. They are drawn for the purpose of defining orestablishing the maritime areas over which a state can exercisesovereign rights. Baselines are used for fixing starting pointfrom which the territorial belt is measured seawards or fromwhich the adjacent maritime waters are measured. Thus, theterritorial sea, a marginal belt of maritime waters, is measuredfrom the baselines extending 12 nautical miles outward.23

Similarly, Article 57 of the 1982 LOSC provides that the ExclusiveEconomic Zone (EEZ) “shall not extend beyond 200 nautical milesfrom the baselines from which the breadth of the territorialsea is measured.”24 Most important to note is that the baselinesindicated under RA No. 9522 are derived from Article 47 of the1982 LOSC which was earlier quoted.

Since the 1987 Constitution’s definition of national territorydoes not delimit where the Philippine’s baselines are located,it is up to the political branches of the government to supplythe deficiency. Through Congress, the Philippines has taken anofficial position regarding its baselines to the internationalcommunity through RA No. 3046,25 as amended by RA No. 544626

and RA 9522. When the Philippines deposited a copy of RA No.9522 with the UN Secretary General, we effectively complied ingood faith with our obligation under the 1982 LOSC. A declarationby the Court of the constitutionality of the law will completethe bona fides of the Philippines vis-a-vis the law of the seatreaty.

It may be that baseline provisions of UNCLOS III, if strictlyimplemented, may have an imposing impact on the signatorystates’ jurisdiction and even their sovereignty. But this actuality,without more, can hardly provide a justifying dimension tonullify the complying RA No. 9522. As held by the Court in BayanMuna v. Romulo,27 treaties and international agreements have23 J. Bernas, supra note 7, at 22.24 UNCLOS III, Article 57.25 June 17, 1961.26 September 18, 1968.27 G.R. No. 159618, February 1, 2011; citing Tañada v. Angara, G.R.

No. 118295, May 2, 1997, 272 SCRA 18.


a limiting effect on the otherwise encompassing and absolutenature of sovereignty. By their voluntary acts, states may decideto surrender or waive some aspects of their sovereignty. Theusual underlying consideration in this partial surrender may bethe greater benefits derived from a pact or reciprocalundertaking. On the premise that the Philippines has adoptedthe generally accepted principles of international law as part ofthe law of the land, a portion of sovereignty may be waivedwithout violating the Constitution.

As a signatory of the 1982 LOSC, it behooves the Philippinesto honor its obligations thereunder. Pacta sunt servanda, a basicinternational law postulate[s] that “every treaty in force isbinding upon the parties to it and must be performed by themin good faith.”28 The exacting imperative of this principle is suchthat a state may not invoke provisions in its constitution or itslaws as an excuse for failure to perform this duty.”29

The allegation that Sabah has been surrendered by virtueof RA No. 9522, which supposedly repealed the hereunderprovision of RA No. 5446, is likewise unfounded.

SEC. 2. The definition of the baselines of the territorial sea ofthe Philippine Archipelago as provided in this Act is withoutprejudice to the delineation of the baselines of the territorialsea around the territory of Sabah, situated in North Borneo,over which the Republic of the Philippines has acquireddominion and sovereignty.

There is nothing in RA No. 9522 indicating a clear intentionto supersede Section 2 of RA No. 5446. Petitioners obviouslyhave read too much into RA No. 9522’s amendment on thebaselines found in an older law. Aside from setting the country’sbaselines, RA No. 9522 is, in its Section 3, quite explicit in itsreiteration of the Philippines’ exercise of sovereignty, thus:

SEC. 3. This Act affirms that the Republic of the Philippines hasdominion, sovereignty and jurisdiction over all portions of

28 Article 26, Vienna Convention on the Law of Treaties, 1969.29 Article 13, Declaration of Rights and Duties of States Adopted by

the International Law Commission, 1949.


the national territory as defined in the Constitution and byprovisions of applicable laws including, without limitation,Republic Act No. 7160, otherwise known as the LocalGovernment Code of 1991, as amended.

To emphasize, baselines are used to measure the breadthof the territorial sea, the contiguous zone, the exclusiveeconomic zone and the continental shelf. Having KIG and theScarborough Shoal outside Philippine baselines will notdiminish our sovereignty over these areas. Article 46 of UNCLOSIII in fact recognizes that an archipelagic state, such as thePhilippines, is a state “constituted wholly by one or morearchipelagos and may include other islands.” (emphasissupplied) The “other islands” referred to in Article 46 aredoubtless islands not forming part of the archipelago but arenevertheless part of the state’s territory.

The Philippines’ sovereignty over KIG and ScarboroughShoal are, thus, in no way diminished. Consider: Other countriessuch as Malaysia and the United States have territories that arelocated outside its baselines, yet there is no territorial questionarising from this arrangement.30

It may well be apropos to point out that the Senate versionof the baseline bill that would become RA No. 9522 containedthe following explanatory note: The law “reiterates oursovereignty over the Kalayaan Group of Islands declared as partof the Philippine territory under Presidential Decree No. 1596.As part of the Philippine territory, they shall be considered as a‘regime of islands’ under Article 121 of the Convention.”31 Thus,instead of being in the nature of a “treasonous surrender” thatpetitioners have described it to be, RA No. 9522 evenharmonizes our baseline laws with our internationalagreements, without limiting our territory to those confinedwithin the country’s baselines.

Contrary to petitioners’ contention, the classification of KIGand the Scarborough Shoal as falling under the Philippine’sregime of islands is not constitutionally objectionable. Such aclassification serves as compliance with LOSC and the30 See J. Batongbacal, supra note 8.31 Id.


Philippines’ assertion of sovereignty over KIG and ScarboroughShoal. In setting the baseline in KIG and Scarborough Shoal, RANo. 9522 states that these are areas “over which the Philippineslikewise exercises sovereignty and jurisdiction.” It is, thus, notcorrect for petitioners to claim that the Philippines has lost15,000 square nautical miles of territorial waters upon makingthis classification. Having 15,000 square nautical miles ofPhilippine waters outside of our baselines, to reiterate, doesnot translate to a surrender of these waters. The Philippinesmaintains its assertion of ownership over territories outside ofits baselines. Even China views RA No. 9522 as an assertion ofownership, as seen in its Protest32 filed with the UN Secretary-General upon the deposit of RA No. 9522.

We take judicial notice of the effective occupation of KIGby the Philippines. Petitioners even point out that national andlocal elections are regularly held there. The classification ofKIG as under a “regime of islands” does not in any manner affectthe Philippines’ consistent position with regard to sovereigntyover KIG. It does not affect the Philippines’ other acts ofownership such as occupation or amend Presidential DecreeNo. 1596, which declared KIG as a municipality of Palawan.

The fact that the baselines of KIG and Scarborough Shoalhave yet to be defined would not detract to the constitutionalityof the law in question. The resolution of the problem lies withthe political departments of the government.

32 The Protest reads in part: “The above-mentioned Philippine Actillegally claims Huangyan Island (referred as “Bajo de Masinloc”in the Act) of China as “areas over which the Philippines likewiseexercises sovereignty and jurisdiction.” The Chinese Governmenthereby reiterates that Huangyan Island and Nansha Islands havebeen part of the territory of China since ancient time. The People’sRepublic of China has indisputable sovereignty over HuangyanIsland and Nansha Islands and their surrounding areas. Any claimto territorial sovereignty over Huangyan Island and Nansha Islandsby any other State is, therefore, null and void.” Available on<http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/ communicationsredeposit/mzn69_2009_chn.pdf>(visited August 9, 2011).


All told, the concerns raised by the petitioners about thediminution or the virtual dismemberment of the Philippineterritory by the enactment of RA No. 9522 are, to me, not wellgrounded. To repeat, UNCLOS III pertains to a law on the seas,not territory. As part of its Preamble,33 LOSC recognizes “thedesirability of establishing through this Convention, with dueregard for the sovereignty of all States, a legal order for theseas and oceans x x x.”

This brings me to the matter of transit passage of foreignvessels through Philippine waters.

Apropos thereto, petitioners allege that RA No. 9522violates the nuclear weapons-free policy under Section 8, inrelation to Section 16, Article II of the Constitution, and exposesthe Philippines to marine pollution hazards, since under theLOSC the Philippines supposedly must give to ships of all statesthe right of innocent passage and the right of archipelagic sea-lane passage.

The adverted Section 8, Article II of the 1987 Constitutiondeclares the adoption and pursuit by the Philippines of “a policyof freedom from nuclear weapons in its territory.” On the otherhand, the succeeding Section l6 underscores the State’s firmcommitment “to protect and advance the right of the people toa balanced and healthful ecology in accord with the rhythm andharmony of nature.” Following the allegations of petitioners,these twin provisions will supposedly be violated inasmuch asRA No. 9522 accedes to the right of innocent passage and theright of archipelagic sea lane passage provided under the LOSC.Therefore, ships of all nations – be they nuclear-carryingwarships or neutral commercial vessels transporting goods –can assert the right to traverse the waters within our islands.

A cursory reading of RA No. 9522 would belie petitioners’posture. In context, RA No. 9522 simply seeks to conform to ourinternational agreement on the setting of baselines andprovides nothing about the designation of archipelagic sea lanepassage or the regulation of innocent passage within our waters.Again, petitioners have read into the amendatory RA No. 9522something not intended.33 Supra note 5.


Indeed, the 1982 LOSC enumerates the rights andobligations of archipelagic party-states in terms of transit underArticles 51 to 53, which are explained below:

To safeguard, in explicit terms, the general balance struck by[Articles 51 and 52] between the need for passage through thearea (other than straits used for international navigation)and the archipelagic state’s need for security, Article 53 gavethe archipelagic state the right to regulate where and howships and aircraft pass through its territory by designatingspecific sea lanes. Rights of passage through these archipelagicsea lanes are regarded as those of transit passage:

(1) An archipelagic State may designate sea lanes and airroutes thereabove, suitable for safe, continuous andexpeditious passage of foreign ships and aircraft throughor over its archipelagic waters and the adjacent territorialsea.

(2) All ships and aircraft enjoy the right of archipelagic sealanes passage in such sea lanes and air routes.

(3) Archipelagic sea lanes passage is the exercise inaccordance with the present Convention of the rights ofnavigation and overflight in the normal mode solely forthe purpose of continuous, expeditious and unobstructedtransit between one part of the high seas or an exclusiveeconomic zone and another part of the high seas or anexclusive economic zone.34

But owing to the geographic structure and physical featuresof the country, i.e., where it is “essentially a body of waterstudded with islands, rather than islands with water aroundthem,”35 the Philippines has consistently maintained theconceptual unity of land and water as a necessary element for

34 C. Ku, The Archipelagic States Concept and Regional Stability inSoutheast Asia, Case W. Res. J. Int’l L., Vol. 23:463, 469; citing 1958U.N. Conference on the Law of the Sea, Summary Records 44, Doc.A/Conf. 13/42.

35 Id.


territorial integrity,36 national security (which may becompromised by the presence of warships and surveillanceships on waters between the islands),37 and the preservationof its maritime resources. As succinctly explained by MinisterArturo Tolentino, the essence of the archipelagic concept is“the dominion and sovereignty of the archipelagic State withinits baselines, which were so drawn as to preserve the territorialintegrity of the archipelago by the inseparable unity of the landand water domain.”38 Indonesia, like the Philippines, in termsof geographic reality, has expressed agreement with thisinterpretation of the archipelagic concept. So it was that in 1957,the Indonesian Government issued the Djuanda Declaration,therein stating:

[H]istorically, the Indonesian archipelago has been an entitysince time immemorial. In view of the territorial entirety andof preserving the wealth of the Indonesian state, it is deemednecessary to consider all waters between the islands and entireentity.

x x x On the ground of the above considerations, theGovernment states that all waters around, between andconnecting, the islands or parts of islands belonging to theIndonesian archipelago irrespective of their width or dimensionare natural appurtenances of its land territory and thereforean integral part of the inland or national waters subject to theabsolute sovereignty of Indonesia.39 (Emphasis supplied)

Hence, the Philippines maintains the sui generis characterof our archipelagic waters as equivalent to the internal waters36 Hiran W. Jayewardene, The Regime of Islands in International Law,

AD Dordrecht: Martinus Nijhoff Publishers, p. 103 (1990).37 Id. at 112.38 UNCLOS III Off. Rec., Vol. II, 264, paragraph 65, and also paragraphs

61–62 and 66; cited in B. Kwiatkowska, “The Archipelagic Regimein Practice in the Philippines and Indonesia – Making or BreakingInternational Law?,” International Journal of Estuarine and CoastalLaw, Vol. 6, No. 1, pp. 6–7.

39 4 Whiteman D.G., INTERNATIONAL LAW 284 (1965); quoted in C. Ku, supranote 34, at 470.


of continental coastal states. In other words, the landward watersembraced within the baselines determined by RA No. 9522,i.e., all waters around, between, and connecting the islands ofthe archipelago, regardless of their breadth and dimensions,form part of the internal waters of the Philippines.40

Accordingly, such waters are not covered by the jurisdiction ofthe LOSC and cannot be subjected to the rights granted to foreignstates in archipelagic waters, e.g., the right of innocentpassage,41 which is allowed only in the territorial seas, or thatarea of the ocean comprising 12 miles from the baselines of ourarchipelago; archipelagic sea lane passage;42 over flight;43 andtraditional fishing rights.44

Our position that all waters within our baselines are internalwaters, which are outside the jurisdiction of the 1982 LOSC,45

was abundantly made clear by the Philippine Declaration at thetime of the signing of the LOSC on December 10, 1982. Toreiterate, paragraphs 5, 6 and 7 of the Declaration state:

5. The Convention shall not be construed as amending inany manner any pertinent laws and Presidential decreesof Proclamation of the Republic of the Philippines; theGovernment x x x maintains and reserves the right andauthority to make any amendments to such laws, decreesor proclamations pursuant to the provisions of thePhilippine Constitution;

6. The provisions of the Convention on archipelagic passagethrough sea lanes do not nullify or impair the sovereigntyof the Philippines as an archipelagic State over the sealanes and do not deprive it of authority to enact legislationto protect its sovereignty, independence and security;

40 1987 CONSTITUTION, Article I.41 LOSC, Articles 52 and 54.42 LOSC, Article 53, paragraph 2.43 LOSC, Article 53, paragraph 2.44 LOSC, Article 51.45 LOSC, Article 8, paragraph 2.


7. The concept of archipelagic waters is similar to the conceptof internal waters under the Constitution of the Philippinesand removes straits connecting this water with theeconomic zone or high seas from the rights of foreignvessels to transit passage for international navigation.(Emphasis supplied)46

More importantly, by the ratification of the 1987 Constitutionon February 2, 1987, the integrity of the Philippine state ascomprising both water and land was strengthened by the provisoin its first article, viz: “The waters around, between, andconnecting the islands of the [Philippine] archipelago,regardless of their breadth and dimensions, form part of theinternal waters of the Philippines. (emphasis supplied)

In effect, contrary to petitioners’ allegations, thePhilippines’ ratification of the 1982 LOSC did not matter-of-factly open our internal waters to passage by foreign ships,either in the concept of innocent passage or archipelagic sealane passage, in exchange for the international community’srecognition of the Philippines as an archipelagic state. TheFilipino people, by ratifying the 1987 Constitution, veritablyrejected the quid pro quo petitioners take as being subsumedin that treaty.

Harmonized with the Declaration and the Constitution, thedesignation of baselines made in RA No. 9522 likewisedesignates our internal waters, through which passage byforeign ships is not a right, but may be granted by the Philippinesto foreign states but only as a dissolvable privilege.

In view of the foregoing, I vote to DISMISS the Petition.

46 Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, “The UnitedNations Convention on the Law of the Sea: Implications of PhilippineRatification,” 9 Philippine Yil (1983) 48–9 and 61–2; and Congressof the Philippines, First Regular Session, Senate, S. No. 232,Explanatory Note and An Act to Repeal Section 2 (concerning TSbaselines around Sabah disputed with Malaysia) of the 1968 ActNo. 5446.

65PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLICOF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP)

Republic of the PhilippinesSupreme Court

Manila

En Banc

G.R. No. 183591G.R. No. 183591G.R. No. 183591G.R. No. 183591G.R. No. 183591October 14, 2008

The Province of North Cotabato, duly represented by Gov. JesusSacdalan and/or Vice-Gov. Emmanuel Piñol, for and in his ownbehalf, petitioners,

– versus –

The Government of the Republic of the Philippines Peace Panelon Ancestral Domain (GRP), represented by Sec. Rodolfo Garcia,Atty. Leah Armamento, Atty. Sedfrey Candelaria, Mark RyanSullivan and/or Gen. Hermogenes Esperon, Jr., the latter in hiscapacity as the present and duly-appointed Presidential Adviseron the Peace Process (OPAPP) or the so-called Office of thePresidential Adviser on the Peace Process, respondents.


City Government of Zamboanga, as represented by Hon. CelsoL. Lobregat, City Mayor of Zamboanga, and in his personalcapacity as resident of the City of Zamboanga, Rep. Ma. IsabelleG. Climaco, District 1, and Rep. Erico Basilio A. Fabian, District 2,City of Zamboanga, petitioners,

– versus –

The Government of the Republic of the Philippines PeaceNegotiating Panel (GRP), as represented by Rodolfo C. Garcia,Leah Armamento, Sedfrey Candelaria, Mark Ryan Sullivan andHermogenes Esperon, in his capacity as the Presidential Adviseron Peace Process, respondents.



The City of Iligan, duly represented by City Mayor LawrenceLluch Cruz, petitioner,

– versus –

The Government of the Republic of the Philippines Peace Panelon Ancestral Domain (GRP), represented by Sec. Rodolfo Garcia,Atty. Leah Armamento, Atty. Sedfrey Candelaria, Mark RyanSullivan; Gen. Hermogenes Esperon, Jr., in his capacity as thepresent and duly appointed Presidential Adviser on the PeaceProcess; and/or Sec. Eduardo Ermita, in his capacity as ExecutiveSecretary, respondents.


The Provincial Government of Zamboanga Del Norte, asrepresented by Hon. Rolando E. Yebes, in his capacity asProvincial Governor, Hon. Francis H. Olvis, in his capacity as Vice-Governor and Presiding Officer of the SangguniangPanlalawigan, Hon. Cecilia Jalosjos Carreon, Congresswoman,1st Congressional District, Hon. Cesar G. Jalosjos, Congressman,3rd Congressional District, and members of the SangguniangPanlalawigan of the Province of Zamboanga Del Norte, namely,Hon. Seth Frederick P. Jalosjos, Hon. Fernando R. Cabigon, Jr.,Hon. Uldarico M. Mejorada II, Hon. Edionar M. Zamoras, Hon.Edgar J. Baguio, Hon. Cedric L. Adriatico, Hon. Felixberto C.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 of the Philippines PeaceNegotiating Panel [GRP], as represented by Hon. Rodolfo C.Garcia and Hon. Hermogenes Esperon, in his capacity as thePresidential Adviser of Peace Process, respondents.



Ernesto M. Maceda, Jejomar C. Binay, and Aquilino L. PimentelIII, petitioners,

– versus –

The Government of the Republic of the Philippines PeaceNegotiating Panel, represented by its Chairman Rodolfo C.Garcia, and the Moro Islamic Liberation Front Peace NegotiatingPanel, represented by its Chairman Mohagher Iqbal,respondents.

Franklin M. Drilon And Adel Abbas Tamano, petitioners-in-intervention.

Sen. Manuel A. Roxas, petitioners-in-intervention.

Municipality of Linamon duly represented by its MunicipalMayor Noel N. Deano, petitioners-in-intervention,

The City of Isabela, Basilan Province, represented by MayorCherrylyn P. Santos-Akbar, petitioners-in-intervention.

The Province of Sultan Kudarat, represented by Hon. Suharto T.Mangudadatu, in his capacity as Provincial Governor and aresident of the Province of Sultan Kudarat, petitioner-in-intervention.

Ruy Elias Lopez, for and in his own behalf and on behalf ofIndigenous Peoples in Mindanao Not Belonging to the MILF,petitioner-in-intervention.

Carlo B. Gomez, Gerardo S. Dilig, Nesario G. Awat, Joselito C.Alisuag and Richalex G. Jagmis, as citizens and residents ofPalawan, petitioners-in-intervention.

Marino Ridao and Kisin Buxani, petitioners-in-intervention.

Muslim Legal Assistance Foundation, Inc (MUSLAF), respondent-in-intervention.

Muslim Multi-Sectoral Movement for Peace and Development(MMMPD), respondent-in-intervention.


DECISION

Carpio Morales, J.:

Subject of these consolidated cases is the extent of the powersof the President in pursuing the peace process. While the factssurrounding this controversy center on the armed conflict inMindanao between the government and the Moro IslamicLiberation Front (MILF), the legal issue involved has a bearingon all areas in the country where there has been a long-standingarmed conflict. Yet again, the Court is tasked to perform adelicate balancing act. It must uncompromisingly delineate thebounds within which the President may lawfully exercise herdiscretion, but it must do so in strict adherence to theConstitution, lest its ruling unduly restricts the freedom ofaction vested by that same Constitution in the Chief Executiveprecisely to enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of thePhilippines (GRP) and the MILF, through the Chairpersons oftheir respective peace negotiating panels, were scheduled tosign a Memorandum of Agreement on the Ancestral Domain(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peaceof 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March1984 when, under the leadership of the late Salamat Hashim, itsplintered from the Moro National Liberation Front (MNLF) thenheaded by Nur Misuari, on the ground, among others, of whatSalamat perceived to be the manipulation of the MNLF awayfrom an Islamic basis towards Marxist-Maoist orientations.1

The signing of the MOA-AD between the GRP and the MILFwas not to materialize, however, for upon motion of petitioners,specifically those who filed their cases before the scheduledsigning of the MOA-AD, this Court issued a TemporaryRestraining Order enjoining the GRP from signing the same.1 Eric Gutierrez and Abdulwahab Guialal, THE UNFINISHED JIHAD: THE MORO

ISLAMIC LIBERATION FRONT AND PEACE IN MINDANAO IN REBELS, WARLORDS AND ULAMA:A READER ON MUSLIM SEPARATISM AND THE WAR IN SOUTHERN PHILIPPINES 275(1999).


The MOA-AD was preceded by a long process of negotiationand the concluding of several prior agreements between thetwo parties beginning in 1996, when the GRP-MILF peacenegotiations began. On July 18, 1997, the GRP and MILF PeacePanels signed the Agreement on General Cessation ofHostilities. The following year, they signed the GeneralFramework of Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents,summarizes the MOA-AD by stating that the same contained,among others, the commitment of the parties to pursue peacenegotiations, protect and respect human rights, negotiate withsincerity in the resolution and pacific settlement of the conflict,and refrain from the use of threat or force to attain undueadvantage while the peace negotiations on the substantiveagenda are ongoing.2

Early on, however, it was evident that there was not goingto be any smooth sailing in the GRP-MILF peace process. Towardsthe end of 1999 up to early 2000, the MILF attacked a number ofmunicipalities in Central Mindanao and, in March 2000, it tookcontrol of the town hall of Kauswagan, Lanao del Norte.3 Inresponse, then President Joseph Estrada declared and carriedout an “all-out-war” against the MILF.

When President Gloria Macapagal-Arroyo assumed office,the military offensive against the MILF was suspended and thegovernment sought a resumption of the peace talks. The MILF,according to a leading MILF member, initially responded withdeep reservation, but when President Arroyo asked theGovernment of Malaysia through Prime Minister MahathirMohammad to help convince the MILF to return to thenegotiating table, the MILF convened its Central Committee toseriously discuss the matter and, eventually, decided to meetwith the GRP.4

2 Memorandum of Respondents dated September 24, 2008, p. 10.3 Memorandum of Respondents dated September 24, 2008, pp. 10–

11.4 Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE

PROCESS 35–36 (2007).


The parties met in Kuala Lumpur on March 24, 2001, withthe talks being facilitated by the Malaysian government, theparties signing on the same date the Agreement on the GeneralFramework for the Resumption of Peace Talks Between the GRPand the MILF. The MILF thereafter suspended all its militaryactions.5

Formal peace talks between the parties were held in Tripoli,Libya from June 20–22, 2001, the outcome of which was theGRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001)containing the basic principles and agenda on the followingaspects of the negotiation: Security Aspect, RehabilitationAspect, and Ancestral Domain Aspect. With regard to theAncestral Domain Aspect, the parties in Tripoli Agreement 2001simply agreed “that the same be discussed further by the Partiesin their next meeting.”

A second round of peace talks was held in Cyberjaya,Malaysia on August 5–7, 2001 which ended with the signing ofthe Implementing Guidelines on the Security Aspect of theTripoli Agreement 2001 leading to a ceasefire status betweenthe parties. This was followed by the Implementing Guidelineson the Humanitarian Rehabilitation and Development Aspectsof the Tripoli Agreement 2001, which was signed on May 7, 2002at Putrajaya, Malaysia. Nonetheless, there were manyincidence of violence between government forces and the MILFfrom 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passedaway on July 13, 2003 and he was replaced by Al Haj Murad, whowas then the chief peace negotiator of the MILF. Murad’sposition as chief peace negotiator was taken over by MohagherIqbal.6

In 2005, several exploratory talks were held between theparties in Kuala Lumpur, eventually leading to the crafting ofthe draft MOA-AD in its final form, which, as mentioned, wasset to be signed last August 5, 2008.

5 Memorandum of Respondents dated September 24, 2008, p. 12.6 Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE

PROCESS 40–41 (2007).


II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious“consensus” ever embodied in an instrument – the MOA-ADwhich is assailed principally by the present petitions bearingdocket numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP PeacePanel on Ancestral Domain7 and the Presidential Adviser onthe Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a petition, docketed as G.R.No. 183591, for Mandamus and Prohibition with Prayer for theIssuance of Writ of Preliminary Injunction and TemporaryRestraining Order.9 Invoking the right to information on mattersof public concern, petitioners seek to compel respondents todisclose and furnish them the complete and official copies ofthe MOA-AD including its attachments, and to prohibit the slatedsigning of the MOA-AD, pending the disclosure of the contentsof the MOA-AD and the holding of a public consultation thereon.Supplementarily, petitioners pray that the MOA-AD be declaredunconstitutional.10

This initial petition was followed by another one, docketedas G.R. No. 183752, also for Mandamus and Prohibition11 filedby the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma.Isabelle Climaco and Rep. Erico Basilio Fabian who likewise prayfor similar injunctive reliefs. Petitioners herein moreover pray7 Composed of its Chairperson, Sec. Rodolfo Garcia, and members,

Atty. Leah Armamento, Atty. Sedfrey Candelaria, with Mark RyanSullivan as Secretariat head.

8 Represented by Governor Jesus Sacdalan and/or Vice-GovernorEmmanuel Piñol.

9 Rollo (G.R. No. 183591), pp. 3–33.10 Supplement to Petition (with motion for leave) of August 11, 2008,

rollo (G.R. No. 183591), pp. 143–162.11 Rollo (G.R. No. 183752), pp. 3–28.12 Represented by Mayor Celso L. Lobregat.


that the City of Zamboanga be excluded from the BangsamoroHomeland and/or Bangsamoro Juridical Entity and, in thealternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued aTemporary Restraining Order commanding and directing publicrespondents and their agents to cease and desist from formallysigning the MOA-AD.13 The Court also required the SolicitorGeneral to submit to the Court and petitioners the official copyof the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan16 filed a petition for Injunctionand/or Declaratory Relief, docketed as G.R. No. 183893, prayingthat respondents be enjoined from signing the MOA-AD or, ifthe same had already been signed, from implementing thesame, and that the MOA-AD be declared unconstitutional.Petitioners herein additionally implead Executive SecretaryEduardo Ermita as respondent.

The Province of Zamboanga del Norte,17 Governor RolandoYebes, V ice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of theSangguniang Panlalawigan of Zamboanga del Norte filed onAugust 15, 2008 a petition for Certiorari, Mandamus andProhibition,19 docketed as G.R. No. 183951. They pray, inter alia,that the MOA-AD be declared null and void and without

13 Rollo (G.R. No. 183591), pp. 132–135; rollo (G.R. No. 183752), pp.68–71.

14 Rollo (G.R. No. 183591), pp. 130–131; rollo (G.R. No. 183752), pp.66–67.

15 Rollo (G.R. No. 183752), pp. 173–246.16 Represented by Mayor Lawrence Lluch Cruz.17 Represented by Governor Rolando Yebes.18 Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico

Mejorada II, Edionar Zamoras, Edgar Baguio, Cedric Adriatico,Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, AnecitoDarunday, Angelica Carreon, and Luzviminda Torrino.

19 Rollo (G.R. No. 183951), pp. 3–33.


operative effect, and that respondents be enjoined fromexecuting the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, andAquilino Pimentel III filed a petition for Prohibition,20 docketedas G.R. No. 183962, praying for a judgment prohibiting andpermanently enjoining respondents from formally signing andexecuting the MOA-AD and or any other agreement derivedtherefrom or similar thereto, and nullifying the MOA-AD forbeing unconstitutional and illegal. Petitioners hereinadditionally implead as respondent the MILF Peace NegotiatingPanel represented by its Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leaveof court to file their petitions-/comments-in-intervention.Petitioners-in-Intervention include Senator Manuel A. Roxas,former Senate President Franklin Drilon and Atty. Adel Tamano,the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, theProvince of Sultan Kudarat22 and Gov. Suharto Mangudadatu,the Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopezof Davao City and of the Bagobo tribe, Sangguniang Panlungsodmember Marino Ridao and businessman Kisin Buxani, both ofCotabato City; and lawyers Carlo Gomez, Gerardo Dilig, NesarioAwat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. TheMuslim Legal Assistance Foundation, Inc. (Muslaf) and theMuslim Multi-Sectoral Movement for Peace and Development(MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered theconsolidation of the petitions. Respondents filed Commentson the petitions, while some of petitioners submitted theirrespective Replies.

Respondents, by Manifestation and Motion of August 19,2008, stated that the Executive Department shall thoroughlyreview the MOA-AD and pursue further negotiations to address

20 Rollo (G.R. No. 183962), pp. 3–20.21 Represented by Mayor Cherrylyn Santos-Akbar.22 Represented by Gov. Suharto Mangudadatu.23 Represented by Mayor Noel Deano.


the issues hurled against it, and thus moved to dismiss the cases.In the succeeding exchange of pleadings, respondents’ motionwas met with vigorous opposition from petitioners.

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

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in viewof the disclosure of official copies of the final draftof the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the LocalGovernment Units is concerned, if it is consideredthat consultation has become fait accompli with thefinalization of the draft;

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

3. Whether respondent Government of the Republic of thePhilippines Peace Panel committed grave abuse ofdiscretion amounting to lack or excess of jurisdictionwhen it negotiated and initiated the MOA vis-à-vis ISSUESNos. 4 and 5;

4. Whether there is a violation of the people’s right toinformation on matters of public concern (1987Constitution, Article III, Section 7) under a state policy offull disclosure of all its transactions involving publicinterest (1987 Constitution, Article II, Section 28) includingpublic consultation under Republic Act No. 7160 (LOCALGOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule65 of the 1997 Rules of Civil Procedure is an appropriateremedy;

5. Whether by signing the MOA, the Government of theRepublic of the Philippines would be BINDING itself

a) to create and recognize the Bangsamoro JuridicalEntity (BJE) as a separate state, or a juridical,territorial or political subdivision not recognized bylaw;


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

c) to concede to or recognize the claim of the MoroIslamic Liberation Front for ancestral domain inviolation of Republic Act No. 8371 (THE INDIGENOUSPEOPLES RIGHTS ACT OF 1997), particularly Section3(g) & Chapter VII (DELINEATION, RECOGNITION OFANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has theauthority to so bind the Government of the Republic of thePhilippines;

6. Whether the inclusion/exclusion of the Province of NorthCotabato, Cities of Zamboanga, Iligan and Isabela, andthe Municipality of Linamon, Lanao del Norte in/from theareas covered by the projected Bangsamoro Homeland isa justiciable question; and

7. Whether desistance from signing the MOA derogates anyprior valid commitments of the Government of the Republicof the Philippines.24

The Court, thereafter, ordered the parties to submit theirrespective Memoranda. Most of the parties submitted theirmemoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objectionsraised in the subject five petitions and six petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes anoverview of the MOA.

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

Under the heading “Terms of Reference” (TOR), the MOA-AD includes not only four earlier agreements between the GRPand MILF, but also two agreements between the GRP and the24 Rollo (G.R. No. 183591), pp. 451–453.


MNLF: the 1976 Tripoli Agreement, and the Final PeaceAgreement on the Implementation of the 1976 TripoliAgreement, signed on September 2, 1996 during theadministration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes – theorganic act for the Autonomous Region in Muslim Mindanao(ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 andseveral international law instruments – the ILO Convention No.169 Concerning Indigenous and Tribal Peoples in IndependentCountries in relation to the UN Declaration on the Rights of theIndigenous Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of“compact rights entrenchment emanating from the regime ofdar-ul-mua’hada (or territory under compact) and dar-ul-sulh(or territory under peace agreement) that partakes the natureof a treaty device.”

During the height of the Muslim Empire, early Muslim juriststended to see the world through a simple dichotomy: therewas the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (theAbode of War). The first referred to those lands where Islamiclaws held sway, while the second denoted those lands whereMuslims were persecuted or where Muslim laws were outlawedor ineffective.27 This way of viewing the world, however,25 Republic Act No. 6734, as amended by Republic Act No. 9054

entitled AN ACT TO STRENGTHEN AND EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS

REGION IN MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO.6734, ENTITLED AN ACT OF PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM

MINDANAO, AS AMENDED.26 Republic Act No. 8371, AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE

RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A

NATIONAL COMMISSION ON INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING

MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES, October29, 1997.

27 Cesar Adib Majul, THE GENERAL NATURE OF ISLAMIC LAW AND ITS APPLICATION INTHE PHILIPPINES, lecture delivered as part of the Ricardo Paras Lectures,a series jointly sponsored by the Commission on Bar Integrationof the Supreme Court, the Integrated Bar of the Philippines and theU.P. Law Center, September 24, 1977.


became more complex through the centuries as the Islamicworld became part of the international community of nations.

As Muslim States entered into treaties with their neighbors,even with distant States and inter-governmental organizations,the classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up todescribe novel ways of perceiving non-Muslim territories. Forinstance, areas like dar-ul-mua’hada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which, though undera secular regime, maintained peaceful and cooperative relationswith Muslim States, having been bound to each other by treatyor agreement. Dar-ul-aman (land of order), on the other hand,referred to countries which, though not bound by treaty withMuslim States, maintained freedom of religion for Muslims.28

It thus appears that the “compact rights entrenchment”emanating from the regime of dar-ul-mua’hada and dar-ul-sulhsimply refers to all other agreements between the MILF andthe Philippine government – the Philippines being the land ofcompact and peace agreement – that partake of the nature of atreaty device, “treaty” being broadly defined as “any solemnagreement in writing that sets out understandings, obligations,and benefits for both parties which provides for a frameworkthat elaborates the principles declared in the [MOA-AD].”29

The MOA-AD states that the Parties “HAVE AGREED ANDACKNOWLEDGED AS FOLLOWS,” and starts with its main body.

The main body of the MOA-AD isdivided into four strands, namely,Concepts and Principles, Territory,Resources, and Governance.28 Ibid., vide M.A. Muqtedar Khan Ph.D., IMMIGRANT AMERICAN MUSLIMS AND

THE MORAL DILEMMAS OF CITIZENSHIP, <http://www.islamfortoday.com/khan04.htm>, visited on September 18, 2008, and SyedShahabuddin, MUSLIM WORLD AND THE CONTEMPORARY IJMA’ ON RULES OF

GOVERNANCE - ii <http://www.milligazette.com/Archives/2004/01-15May04-Print-Edition/0105200471.htm> visited on September 18,2008.

29 MOA-AD Terms of Reference.


A. Concepts and Principles

This strand begins with the statement that it is “the birthrightof all Moros and all Indigenous peoples of Mindanao to identifythemselves and be accepted as ‘Bangsamoros.’” It defines“Bangsamoro people” as the natives or original inhabitants ofMindanao and its adjacent islands including Palawan and theSulu archipelago at the time of conquest or colonization, andtheir descendants whether mixed or of full blood, includingtheir spouses.30

Thus, the concept of “Bangsamoro,” as defined in this strandof the MOA-AD, includes not only “Moros” as traditionallyunderstood even by Muslims,31 but all indigenous peoples ofMindanao and its adjacent islands. The MOA-AD adds that the

30 MOA-AD, Concepts and Principles, paragraph 1.31 A traditional Muslim historical account of the acts of Shariff

Kabungsuwan is quoted by historian Cesar Adib Majul in his book,Muslims in the Philippines (1973):

After a time it came to pass that Mamalu, who was thechief man next to Kabungsuwan, journeyed to Cotabato.He found there that many of the people had ceased toregard the teachings of the Koran and had fallen into evilways. Mamamlu sent to Kabungsuwan word of thesethings.

Kabungsuwan with a portion of his warriors went fromMalabang to Cotabato and found that the word sent tohim by Mamamlu was true. Then he assembled togetherall the people. Those of them, who had done evilly anddisregarded the teachings of the Koran thenceforth, hedrove out of the town into the hills, with their wives andchildren.

Those wicked one who were thus cast out were thebeginnings of the tribes of the Tirurais and Manobos, wholive to the east of Cotabato in the country into which theirevil forefathers were driven. And even to this day theyworship not God; neither do they obey the teachings of theKoran x x x. But the people of Kabungsuwan, who regardedthe teachings of the Koran and lived in fear of God,prospered and increased, and we Moros of today are theirdescendants. (Citation omitted, emphasis supplied).


freedom of choice of indigenous peoples shall be respected.What this freedom of choice consists in has not been specificallydefined.

The MOA-AD proceeds to refer to the “Bangsamorohomeland,” the ownership of which is vested exclusively in theBangsamoro people by virtue of their prior rights of occupation.32

Both parties to the MOA-AD acknowledge that ancestral domaindoes not form part of the public domain.33

The Bangsamoro people are acknowledged as having theright to self-governance, which right is said to be rooted onancestral territoriality exercised originally under the suzerainauthority of their sultanates and the Pat a Pangampong kuRanaw. The sultanates were described 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 ofthe Bangsamoro people on the past suzerain authority of thesultanates. As gathered, the territory defined as the Bangsamorohomeland was ruled by several sultanates and, specifically inthe 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 supremeover the others.35

The MOA-AD goes on to describe the Bangsamoro peopleas “the ‘First Nation’ with defined territory and with a systemof government having entered into treaties of amity andcommerce with foreign nations.”

The term “First Nation” is of Canadian origin referring tothe indigenous peoples of that territory, particularly those

32 Id. paragraph 2.33 Id. paragraph 3.34 Id. paragraph 4.35 Francisco L. Gonzales, SULTANS OF A VIOLENT LAND, in Rebels, Warlords

and Ulama: A Reader on Muslim Separatism and the War inSouthern Philippines 99, 103 (1999).


known as Indians. In Canada, each of these indigenous peoplesis equally entitled to be called “First Nation,” hence, all of themare usually described collectively by the plural “First Nations.”36

To that extent, the MOA-AD, by identifying the Bangsamoropeople as “the First Nation” – suggesting its exclusiveentitlement to that designation – departs from the Canadianusage of the term.

The MOA-AD then mentions for the first time the“Bangsamoro Juridical Entity” (BJE) to which it grants theauthority and jurisdiction over the Ancestral Domain andAncestral Lands of the Bangsamoro.37

B. Territory

The territory of the Bangsamoro homeland is described as theland mass as well as the maritime, terrestrial, fluvial and alluvialdomains, including the aerial domain and the atmosphericspace above it, embracing the Mindanao-Sulu-Palawangeographic region.38

More specifically, the core of the BJE is defined as thepresent geographic area of the ARMM – thus constituting thefollowing areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi,Basilan, and Marawi City. Significantly, this core also includescertain municipalities of Lanao del Norte that voted for inclusionin the ARMM in the 2001 plebiscite.39

36 The Charter of the Assembly of First Nations, the leading advocacygroup for the indigenous peoples of Canada, adopted in 1985,begins thus:

WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN CANADAHAVING DECLARED:

THAT our peoples are the original peoples of this landhaving been put here by the Creator; x x x.

37 Id. paragraph 6.38 MOA-AD, Territory, paragraph 1.39 Id. paragraph 2(c).


Outside of this core, the BJE is to cover other provinces,cities, municipalities and barangays, which are grouped intotwo categories, Category A and Category B. Each of these areasis to be subjected to a plebiscite to be held on different dates,years apart from each other. Thus, Category A areas are to besubjected to a plebiscite not later than 12 months following thesigning of the MOA-AD.40 Category B areas, also called “SpecialIntervention Areas,” on the other hand, are to be subjected to aplebiscite 25 years from the signing of a separate agreement –the Comprehensive Compact.41

The Parties to the MOA-AD stipulate that the BJE shall havejurisdiction over all natural resources within its “internal waters,”defined as extending 15 kilometers from the coastline of theBJE area;42 that the BJE shall also have “territorial waters,” whichshall stretch beyond the BJE internal waters up to the baselinesof the Republic of the Philippines (RP) south east and southwest of mainland Mindanao; and that within these territorialwaters, the BJE and the “Central Government” (usedinterchangeably with RP) shall exercise joint jurisdiction,authority and management over all natural resources.43 Notably,the jurisdiction over the internal waters is not similarly describedas “joint.”

The MOA-AD further provides for the sharing of mineralson the territorial waters between the Central Government andthe BJE, in favor of the latter, through production sharing andeconomic cooperation agreement.44 The activities which theParties are allowed to conduct on the territorial waters areenumerated, among which are the exploration and utilizationof natural resources, regulation of shipping and fishing activities,and the enforcement of police and safety measures.45 There is

40 Id. paragraph 2(d).41 Id. paragraph 2(e).42 Id. paragraph 2(f).43 Id. paragraph 2(g)(1).44 Id. paragraph 2(h).45 Id. paragraph 2(i).


no similar provision on the sharing of minerals and allowedactivities with respect to the internal waters of the BJE.

C. Resources

The MOA-AD states that the BJE is free to enter into anyeconomic cooperation and trade relations with foreign countriesand shall have the option to establish trade missions in thosecountries. Such relationships and understandings, however, arenot to include aggression against the GRP. The BJE may alsoenter into environmental cooperation agreements.46

The external defense of the BJE is to remain the duty andobligation of the Central Government. The Central Governmentis also bound to “take necessary steps to ensure the BJE’sparticipation in international meetings and events” like thoseof the ASEAN and the specialized agencies of the UN. The BJE isto be entitled to participate in Philippine official missions anddelegations for the negotiation of border agreements orprotocols for environmental protection and equitable sharingof incomes and revenues involving the bodies of water adjacentto or between the islands forming part of the ancestral domain.47

With regard to the right of exploring for, producing, andobtaining all potential sources of energy, petroleum, fossil fuel,mineral oil and natural gas, the jurisdiction and control thereonis to be vested in the BJE “as the party having control within itsterritorial jurisdiction.” This right carries the proviso that, “intimes of national emergency, when public interest so requires,”the Central Government may, for a fixed period and underreasonable terms as may be agreed upon by both Parties,assume or direct the operation of such resources.48

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

46 MOA-AD, Resources, paragraph 4.47 Ibid.48 Id. paragraph 5.49 Id. paragraph 6.


The MOA-AD provides that legitimate grievances of theBangsamoro people arising from any unjust dispossession oftheir territorial and proprietary rights, customary land tenures,or their marginalization shall be acknowledged. Wheneverrestoration is no longer possible, reparation is to be in suchform as mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timberlicenses, contracts or agreements, mining concessions, MineralProduction and Sharing Agreements (MPSA), Industrial ForestManagement Agreements (IFMA), and other land tenureinstruments granted by the Philippine Government, includingthose issued by the present ARMM.51

D. Governance

The MOA-AD binds the Parties to invite a multinational thirdparty to observe and monitor the implementation of theComprehensive Compact. This compact is to embody the “detailsfor the effective enforcement” and “the mechanisms andmodalities for the actual implementation” of the MOA-AD. TheMOA-AD explicitly provides that the participation of the thirdparty shall not in any way affect the status of the relationshipbetween the Central Government and the BJE.52

The “associative” relationshipbetween the Central Governmentand the BJE

The MOA-AD describes the relationship of the CentralGovernment and the BJE as “associative,” characterized byshared authority and responsibility. And it states that thestructure of governance is to be based on executive, legislative,judicial, and administrative institutions with defined powersand functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring“amendments to the existing legal framework” shall take effect50 Id. paragraph 7.51 Id. paragraph 9.52 MOA-AD, Governance, paragraph 3.


upon signing of the Comprehensive Compact and upon effectingthe aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulatedtimeframe to be contained in the Comprehensive Compact. Aswill be discussed later, much of the present controversy hangson the legality of this provision.

The BJE is granted the power to build, develop and maintainits own institutions inclusive of civil service, electoral, financialand banking, education, legislation, legal, economic, police andinternal security force, judicial system and correctionalinstitutions, the details of which shall be discussed in thenegotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed onAugust 5, 2008, by Rodolfo Garcia and Mohagher Iqbal,Chairpersons of the Peace Negotiating Panels of the GRP andthe MILF, respectively. Notably, the penultimate paragraph ofthe MOA-AD identifies the signatories as “the representatives ofthe Parties,” meaning the GRP and MILF themselves, and notmerely of the negotiating panels.53 In addition, the signaturepage of the MOA-AD states that it is “WITNESSED BY” DatukOthman Bin Abd Razak, Special Adviser to the Prime Minister ofMalaysia, “ENDORSED BY” Ambassador Sayed Elmasry, Adviserto Organization of the Islamic Conference (OIC) SecretaryGeneral and Special Envoy for Peace Process in SouthernPhilippines, and SIGNED “IN THE PRESENCE OF” Dr. Albert G.Romulo, Secretary of Foreign Affairs of RP and Dato’ Seri UtamaDr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all ofwhom were scheduled to sign the Agreement last August 5,2008.

Annexed to the MOA-AD are two documents containing therespective lists cum maps of the provinces, municipalities, andbarangays under Categories A and B earlier mentioned in thediscussion on the strand on TERRITORY.

53 “IN WITNESS WHEREOF, the undersigned, being the representativesof the Parties[,] hereby affix their signatures.”


IV. PROCEDURAL ISSUES

A. Ripeness

The power of judicial review is limited to actual cases orcontroversies.54 Courts decline to issue advisory opinions or toresolve hypothetical or feigned problems, or mere academicquestions.55 The limitation of the power of judicial review toactual cases and controversies defines the role assigned to thejudiciary in a tripartite allocation of power, to assure that thecourts will not intrude into areas committed to the otherbranches of government.56

An actual case or controversy involves a conflict of legalrights, an assertion of opposite legal claims, susceptible ofjudicial resolution as distinguished from a hypothetical orabstract difference or dispute. There must be a contrariety oflegal rights that can be interpreted and enforced on the basis ofexisting law and jurisprudence.57 The Court can decide theconstitutionality of an act or treaty only when a proper casebetween opposing parties is submitted for judicialdetermination.58

Related to the requirement of an actual case or controversyis the requirement of ripeness. A question is ripe foradjudication when the act being challenged has had a directadverse effect on the individual challenging it.59 For a case tobe considered ripe for adjudication, it is a prerequisite thatsomething had then been accomplished or performed by either

54 Vide 1987 CONSTITUTION, Article VIII, Section 1.55 Vide Muskrat v. US, 219 U.S. 346 (1911).56 Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).57 Didipio Earth Savers’ Multi-Purpose Association, Incorporated

(DESAMA) v. Gozun, G.R. No. 157882, March 30, 2006, 485 SCRA286.

58 Vide US v. Muskrat, 219 U.S. 346, 357 (1902).59 Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427–428 (1998).


branch before a court may come into the picture,60 and thepetitioner must allege the existence of an immediate orthreatened injury to itself as a result of the challenged action.61

He must show that he has sustained or is immediately in dangerof sustaining some direct injury as a result of the act complainedof.62

The Solicitor General argues that there is no justiciablecontroversy that is ripe for judicial review in the presentpetitions, reasoning that

The unsigned MOA-AD is simply a list of consensus pointssubject to further negotiations and legislative enactments aswell as constitutional processes aimed at attaining a finalpeaceful agreement. Simply put, the MOA-AD remains to be aproposal that does not automatically create legallydemandable rights and obligations until the list of operativeacts required have been duly complied with. x x x

x x x x

In the cases at bar, it is respectfully submitted that thisHonorable Court has no authority to pass upon issues basedon hypothetical or feigned constitutional problems or interestswith no concrete bases. Considering the preliminary characterof the MOA-AD, there are no concrete acts that could possiblyviolate petitioners’ and intervenors’ rights since the actscomplained of are mere contemplated steps toward theformulation of a final peace agreement. Plainly, petitionersand intervenors’ perceived injury, if at all, is merely imaginaryand illusory apart from being unfounded and based on mereconjectures. (Underscoring supplied)

The Solicitor General cites63 the following provisions of theMOA-AD:

60 Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901–902(2003) (citation omitted).

61 Vide Warth v. Seldin, 422 U.S. 490, 511 (1975).62 Vide Id. at 526.63 Solicitor General’s Comment to G.R. No. 183752, pp. 9–11.


TERRITORY

x x x x

2. Toward this end, the Parties enter into the followingstipulations:

x x x x

d. Without derogating from the requirements of prioragreements, the Government stipulates to conduct anddeliver, using all possible legal measures, within 12months following the signing of the MOA-AD, a plebiscitecovering the areas as enumerated in the list and depictedin the map as Category A attached herein (the “Annex”).The Annex constitutes an integral part of this frameworkagreement. Toward this end, the Parties shall endeavor tocomplete the negotiations and resolve all outstandingissues on the Comprehensive Compact within 15 monthsfrom the signing of the MOA-AD.

x x x x

GOVERNANCE

x x x x

7. The Parties agree that mechanisms and modalities for theactual implementation of this MOA-AD shall be spelt outin the Comprehensive Compact to mutually take such stepsto enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments tothe existing legal framework shall come into force uponthe signing of a Comprehensive Compact and upon effectingthe necessary changes to the legal framework with dueregard to non-derogation of prior agreements and withinthe stipulated timeframe to be contained in theComprehensive Compact.64 (Underscoring supplied)

The Solicitor General’s arguments fail to persuade.

64 MOA-AD, pp. 3–7, 10.


Concrete acts under the MOA-AD are not necessary torender the present controversy ripe. In Pimentel, Jr. v. Aguirre,65

this Court held:

x x x [B]y the mere enactment of the questioned law or theapproval of the challenged action, the dispute is said to haveripened into a judicial controversy even without any otherovert act. Indeed, even a singular violation of the Constitutionand/or the law is enough to awaken judicial duty.

x x x x

By the same token, when an act of the President, who in ourconstitutional scheme is a coequal of Congress, is seriouslyalleged to have infringed the Constitution and the laws x x xsettling the dispute becomes the duty and the responsibility ofthe courts.66

In Santa Fe Independent School District v. Doe,67 the UnitedStates Supreme Court held that the challenge to theconstitutionality of the school’s policy allowing student-ledprayers and speeches before games was ripe for adjudication,even if no public prayer had yet been led under the policy,because the policy was being challenged as unconstitutionalon its face.68

That the law or act in question is not yet effective does notnegate ripeness. For example, in New York v. United States,69

decided in 1992, the United States Supreme Court held that theaction by the State of New York challenging the provisions ofthe Low-Level Radioactive Waste Policy Act was ripe foradjudication even if the questioned provision was not to takeeffect until January 1, 1996, because the parties agreed thatNew York had to take immediate action to avoid the provision’sconsequences.70

65 391 Phil. 43 (2000).66 Id. at 107–108.67 530 U.S. 290 (2000).68 Id. at 292.69 505 U.S. 144 (1992).70 Id. at 175.


The present petitions pray for Certiorari,71 Prohibition, andMandamus. Certiorari and Prohibition are remedies granted bylaw when any tribunal, board or officer has acted, in the case ofcertiorari, or is proceeding, in the case of prohibition, withoutor in excess of its jurisdiction or with grave abuse of discretionamounting to lack or excess of jurisdiction.72 Mandamus is aremedy granted by law when any tribunal, corporation, board,officer or person unlawfully neglects the performance of an actwhich the law specifically enjoins as a duty resulting from anoffice, trust, or station, or unlawfully excludes another fromthe use or enjoyment of a right or office to which such other isentitled.73 Certiorari, Mandamus and Prohibition areappropriate remedies to raise constitutional issues and toreview and/or prohibit/nullify, when proper, acts of legislativeand executive officials.74

The authority of the GRP Negotiating Panel is defined byExecutive Order No. 3 (E.O. No. 3), issued on February 28, 2001.75

The said executive order requires that “[t]he government’spolicy framework for peace, including the systematic approachand the administrative structure for carrying out thecomprehensive peace process x x x be governed by thisExecutive Order.”76

The present petitions allege that respondents GRP Paneland PAPP Esperon drafted the terms of the MOA-AD withoutconsulting the local government units or communities affected,nor informing them of the proceedings. As will be discussed in

71 Although only one petition is denominated a petition for certiorari,most petitions pray that the MOA-AD be declared unconstitutional/null and void.

72 Vide RULES OF COURT, Rule 65, Sections 1 and 2.73 Vide Rules of Court, Rule 65, Section 3.74 Tañada v. Angara, 338 Phil. 546, 575 (1997).75 Entitled DEFINING POLICY AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENT’S PEACE

EFFORTS which reaffirms and reiterates Executive Order No. 125 ofSeptember 15, 1993.

76 EXECUTIVE ORDER NO. 3, (2001), Section 1.


greater detail later, such omission, by itself, constitutes adeparture by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of theMOA-AD violate the Constitution. The MOA-AD provides that“any provisions of the MOA-AD requiring amendments to theexisting legal framework shall come into force upon the signingof a Comprehensive Compact and upon effecting the necessarychanges to the legal framework,” implying an amendment ofthe Constitution to accommodate the MOA-AD. This stipulation,in effect, guaranteed to the MILF the amendment of theConstitution. Such act constitutes another violation of itsauthority. Again, these points will be discussed in more detaillater.

As the petitions allege acts or omissions on the part ofrespondent that exceed their authority, by violating their dutiesunder E.O. No. 3 and the provisions of the Constitution andstatutes, the petitions make a prima facie case for Certiorari,Prohibition, and Mandamus, and an actual case or controversyripe for adjudication exists. When an act of a branch ofgovernment is seriously alleged to have infringed theConstitution, it becomes not only the right but in fact the dutyof the judiciary to settle the dispute.77

B. Locus Standi

For a party to have locus standi, one must allege “such a personalstake in the outcome of the controversy as to assure thatconcrete adverseness which sharpens the presentation of issuesupon which the court so largely depends for illumination ofdifficult constitutional questions.”78

Because constitutional cases are often public actions inwhich the relief sought is likely to affect other persons, apreliminary question frequently arises as to this interest in theconstitutional question raised.79

77 Vide Tañada v. Angara, supra note 74.78 Baker v. Carr, 369 U.S. 186 (1962).79 Vicente V. Mendoza, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2004).


When suing as a citizen, the person complaining must allegethat he has been or is about to be denied some right or privilegeto which he is lawfully entitled or that he is about to besubjected to some burdens or penalties by reason of the statuteor act complained of.80 When the issue concerns a public right,it is sufficient that the petitioner is a citizen and has an interestin the execution of the laws.81

For a taxpayer, one is allowed to sue where there is anassertion that public funds are illegally disbursed or deflectedto an illegal purpose, or that there is a wastage of public fundsthrough the enforcement of an invalid or unconstitutional law.82

The Court retains discretion whether or not to allow a taxpayer’ssuit.83

In the case of a legislator or member of Congress, an act ofthe Executive that injures the institution of Congress causes aderivative but nonetheless substantial injury that can bequestioned by legislators. A member of the House ofRepresentatives has standing to maintain inviolate theprerogatives, powers and privileges vested by the Constitutionin his office.84

An organization may be granted standing to assert the rightsof its members,85 but the mere invocation by the IntegratedBar of the Philippines or any member of the legal profession ofthe duty to preserve the rule of law does not suffice to clothe itwith standing.86

80 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896(2003).

81 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489SCRA 160, 223.

82 Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995).83 Macasiano v. NHA, G.R. No. 107921, July 1, 1993, 224 SCRA 236.84 Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 328–

329 (2000) citing Phil. Constitution Ass’n., Inc. v. Mathay, et al., 124Phil. 890 (1966).

85 Vide NAACP v. Alabama, 357 U.S. 449 (1958).86 Francisco, Jr. v. The House of Representatives, supra note 80.


As regards a local government unit (LGU), it can seek reliefin order to protect or vindicate an interest of its own, and of theother LGUs.87

Intervenors, meanwhile, may be given legal standing uponshowing of facts that satisfy the requirements of the lawauthorizing intervention,88 such as a legal interest in the matterin litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the proceduraltechnicality on locus standi, given the liberal attitude it hasexercised, highlighted in the case of David v. Macapagal-Arroyo,89 where technicalities of procedure were brushed aside,the constitutional issues raised being of paramount publicinterest or of transcendental importance deserving theattention of the Court in view of their seriousness, novelty andweight as precedents.90 The Court’s forbearing stance on locusstandi on issues involving constitutional issues has for itspurpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty underthe Constitution to determine whether the other branches ofgovernment have kept themselves within the limits of theConstitution and the laws and have not abused the discretiongiven them, has brushed aside technical rules of procedure.91

In the petitions at bar, petitioners Province of NorthCotabato (G.R. No. 183591) Province of Zamboanga del Norte(G.R. No. 183951), City of Iligan (G.R. No. 183893) and City ofZamboanga (G.R. No. 183752) and petitioners-in-interventionProvince of Sultan Kudarat, City of Isabela and Municipality ofLinamon have locus standi in view of the direct and substantialinjury that they, as LGUs, would suffer as their territories,87 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004,

429 SCRA 736.88 Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999)

citing Gibson v. Judge Revilla, 180 Phil. 645 (1979).89 Supra note 81.90 Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 (2000).91 Tatad v. Secretary of Energy, 346 Phil. 321 (1997).


whether in whole or in part, are to be included in the intendeddomain of the BJE. These petitioners allege that they did notvote for their inclusion in the ARMM which would be expandedto form the BJE territory. Petitioners’ legal standing is thusbeyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, JejomarBinay and Aquilino Pimentel III would have no standing ascitizens and taxpayers for their failure to specify that they wouldbe denied some right or privilege or there would be wastage ofpublic funds. The fact that they are a former Senator, anincumbent mayor of Makati City, and a resident of Cagayan deOro, respectively, is of no consequence. Considering theirinvocation of the transcendental importance of the issues athand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in allegingtheir standing as taxpayers, assert that government funds wouldbe expended for the conduct of an illegal and unconstitutionalplebiscite to delineate the BJE territory. On that score alone,they can be given legal standing. Their allegation that the issuesinvolved in these petitions are of “undeniable transcendentalimportance” clothes them with added basis for their personalityto intervene in these petitions.

With regard to Senator Manuel Roxas, his standing ispremised on his being a member of the Senate and a citizen toenforce compliance by respondents of the public’sconstitutional right to be informed of the MOA-AD, as well ason a genuine legal interest in the matter in litigation, or in thesuccess or failure of either of the parties. He thus possesses therequisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a formercongressman of the 3rd district of Davao City, a taxpayer and amember of the Bagobo tribe; Carlo B. Gomez, et al., as membersof the IBP Palawan chapter, citizens and taxpayers; MarinoRidao, as taxpayer, resident and member of the SangguniangPanlungsod of Cotabato City; and Kisin Buxani, as taxpayer, theyfailed to allege any proper legal interest in the presentpetitions. Just the same, the Court exercises its discretion torelax the procedural technicality on locus standi given theparamount public interest in the issues at hand.


Intervening respondents Muslim Multi-Sectoral Movementfor Peace and Development, an advocacy group for justice andthe attainment of peace and prosperity in Muslim Mindanao;and Muslim Legal Assistance Foundation Inc., a non-governmentorganization of Muslim lawyers, allege that they stand to bebenefited or prejudiced, as the case may be, in the resolutionof the petitions concerning the MOA-AD, and prays for thedenial of the petitions on the grounds therein stated. Such legalinterest suffices to clothe them with standing.

B. MootnessRespondents insist that the present petitions have beenrendered moot with the satisfaction of all the reliefs prayed forby petitioners and the subsequent pronouncement of theExecutive Secretary that “[n]o matter what the Supreme Courtultimately decides[,] the government will not sign the MOA.”92

In lending credence to this policy decision, the SolicitorGeneral points out that the President had already disbandedthe GRP Peace Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the“moot and academic” principle not being a magical formula thatautomatically dissuades courts in resolving a case, it will decidecases, otherwise moot and academic, if it finds that (a) there isa grave violation of the Constitution;95 (b) the situation is ofexceptional character and paramount public interest isinvolved;96 (c) the constitutional issue raised requiresformulation of controlling principles to guide the bench, thebar, and the public;97 and (d) the case is capable of repetitionyet evading review.98

92 Vide Compliance of September 1, 2008 of respondents.93 Vide Manifestation of September 4, 2008 of respondents.94 Supra note 81.95 Id. citing Province of Batangas v. Romulo, supra note 87.96 Id. citing Lacson v. Perez, 410 Phil. 78 (2001).97 Id. citing Province of Batangas v. Romulo, supra note 87.98 Id. citing Albaña v. Comelec, 478 Phil. 941 (2004); Chief Supt. Acop

v. Guingona Jr., 433 Phil. 62 (2002); SANLAKAS v. Executive SecretaryReyes, 466 Phil. 482 (2004).


Another exclusionary circumstance that may be consideredis where there is a voluntary cessation of the activitycomplained of by the defendant or doer. Thus, once a suit isfiled and the doer voluntarily ceases the challenged conduct, itdoes not automatically deprive the tribunal of power to hearand determine the case and does not render the case mootespecially when the plaintiff seeks damages or prays forinjunctive relief against the possible recurrence of theviolation.99

The present petitions fall squarely into these exceptions tothus thrust them into the domain of judicial review. The groundscited above in David are just as applicable in the present casesas they were, not only in David, but also in Province of Batangasv. Romulo100 and Manalo v. Calderon101 where the Court similarlydecided them on the merits, supervening events that wouldordinarily have rendered the same moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRPPeace Panel did not moot the present petitions. It bearsemphasis that the signing of the MOA-AD did not push throughdue to the Court’s issuance of a Temporary Restraining Order.

Contrary too to respondents’ position, the MOA-AD cannotbe considered a mere “list of consensus points,” especially givenits nomenclature, the need to have it signed or initialed by allthe parties concerned on August 5, 2008, and the far-reachingConstitutional implications 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 acommitment on the part of respondents to amend and effect99 US v. W.T. Grant Co., 345 U.S. 629 (1953); US v. Trans-Missouri Freight

Assn., 166 U.S. 290, 308–310 (1897); Walling v. Helmerich & Payne,Inc., 323 U.S. 37, 43 (1944); Gray v. Sanders, 372 U.S. 368, 376(1963); Defunis v. Odegaard, 416 U.S. 312 (1974).

100 Supra note 87.101 G.R. No. 178920, October 15, 2007, 536 SCRA 290.


necessary changes to the existing legal framework for certainprovisions of the MOA-AD to take effect. Consequently, thepresent petitions are not confined to the terms and provisionsof the MOA-AD, but to other ongoing and future negotiationsand agreements necessary for its realization. The petitions havenot, therefore, been rendered moot and academic simply bythe public disclosure of the MOA-AD,102 the manifestation thatit will not be signed as well as the disbanding of the GRP Panelnot withstanding.

Petitions are imbued withparamount public interest

There is no gainsaying that the petitions are imbued withparamount public interest, involving a significant part of thecountry’s territory and the wide-ranging political modificationsof affected LGUs. The assertion that the MOA-AD is subject tofurther legal enactments including possible Constitutionalamendments more than ever provides impetus for the Court toformulate controlling principles to guide the bench, the bar,the public and, in this case, the government and its negotiatingentity.

Respondents cite Suplico v. NEDA, et al.103 where the Courtdid not “pontificat[e] on issues which no longer legitimatelyconstitute an actual case or controversy [as this] will do moreharm than good to the nation as a whole.”

The present petitions must be differentiated from Suplico.Primarily, in Suplico, what was assailed and eventually cancelledwas a stand-alone government procurement contract for anational broadband network involving a one-time contractualrelation between two parties – the government and a privateforeign corporation. As the issues therein involved specificgovernment procurement policies and standard principles oncontracts, the majority opinion in Suplico found nothingexceptional therein, the factual circumstances being peculiaronly to the transactions and parties involved in the controversy.

102 Chavez v. PCGG, 366 Phil. 863, 871 (1999).103 G.R. No. 178830, July 14, 2008.


The MOA-AD is part of a seriesof agreements

In the present controversy, the MOA-AD is a significant part of aseries of agreements necessary to carry out the TripoliAgreement 2001. The MOA-AD which dwells on the AncestralDomain Aspect of said Tripoli Agreement is the third suchcomponent to be undertaken following the implementation ofthe Security Aspect in August 2001 and the Humanitarian,Rehabilitation and Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in hisMemorandum of August 28, 2008 to the Solicitor General, hasstated that “no matter what the Supreme Court ultimatelydecides[,] the government will not sign the MOA[-AD],”mootness will not set in in light of the terms of the TripoliAgreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or anotherone will be drawn up to carry out the Ancestral Domain Aspectof the Tripoli Agreement 2001, in another or in any form, whichcould contain similar or significantly drastic provisions. Whilethe Court notes the word of the Executive Secretary that thegovernment “is committed to securing an agreement that isboth constitutional and equitable because that is the only waythat long-lasting peace can be assured,” it is minded to render adecision on the merits in the present petitions to formulatecontrolling principles to guide the bench, the bar, the publicand, most especially, the government in negotiating with theMILF regarding Ancestral Domain.

Respondents invite the Court’s attention to the separateopinion of then Chief Justice Artemio Panganiban in Sanlakasv. Reyes104 in which he stated that the doctrine of “capable ofrepetition yet evading review” can override mootness,“provided the party raising it in a proper case has been and/orcontinue to be prejudiced or damaged as a direct result of their

104 Supra note 98.


issuance.” They contend that the Court must have jurisdictionover the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibitionover which this Court exercises original jurisdiction. While G.R.No. 183893 (City of Iligan v. GRP) is a petition for Injunction andDeclaratory Relief, the Court will treat it as one for Prohibitionas it has far reaching implications and raises questions that needto 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 theCourt to again apply the doctrine immediately referred to aswhat it had done in a number of landmark cases.106 There is areasonable expectation that petitioners, particularly theProvinces of North Cotabato, Zamboanga del Norte and SultanKudarat, the Cities of Zamboanga, Iligan and Isabela, and theMunicipality of Linamon, will again be subjected to the sameproblem in the future as respondents’ actions are capable ofrepetition, in another or any form.

It is with respect to the prayers for Mandamus that thepetitions have become moot, respondents having, byCompliance of August 7, 2008, provided this Court andpetitioners with official copies of the final draft of the MOA-ADand its annexes. Too, intervenors have been furnished, or haveprocured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention,there are basically two SUBSTANTIVE issues to be resolved, onerelating to the manner in which the MOA-AD was negotiatedand finalized, the other relating to its provisions, viz:

105 Ortega v. Quezon City Government, G.R. No. 161400, September 2,2005, 469 SCRA 388.

106 Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III, 343Phil. 184 (1997); Chief Superintendent Acop v. Guingona, Jr., supranote 98; Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22,2006, 499 SCRA 434, 447.


1. Did respondents violate constitutional and statutoryprovisions on public consultation and the right toinformation when they negotiated and later initialed theMOA-AD?

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

On the First Substantive Issue

Petitioners invoke their constitutional right to information onmatters of public concern, as provided in Section 7, Article III onthe Bill of Rights:

SEC. 7. The right of the people to information on matters ofpublic 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 researchdata used as basis for policy development, shall be affordedthe citizen, subject to such limitations as may be provided bylaw.107

As early as 1948, in Subido v. Ozaeta,108 the Court hasrecognized the statutory right to examine and inspect publicrecords, a right which was eventually accorded constitutionalstatus.

The right of access to public documents, as enshrined inboth the 1973 Constitution and the 1987 Constitution, has beenrecognized as a self-executory constitutional right.109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 theCourt ruled that access to public records is predicated on theright of the people to acquire information on matters of publicconcern since, undoubtedly, in a democracy, the public has alegitimate interest in matters of social and political significance.

107 CONSTITUTION, Article III, Section 7.108 80 Phil. 383 (1948).109 Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987,

150 SCRA 530.110 162 Phil. 868 (1976).


x x x The incorporation of this right in the Constitution is arecognition of the fundamental role of free exchange ofinformation in a democracy. There can be no realisticperception by the public of the nation’s problems, nor ameaningful democratic decision making if they are deniedaccess to information of general interest. Information is neededto enable the members of society to cope with the exigenciesof the times. As has been aptly observed: “Maintaining theflow of such information depends on protection for both itsacquisition and its dissemination since, if either process isinterrupted, the flow inevitably ceases.” x x x111

In the same way that free discussion enables members ofsociety to cope with the exigencies of their time, access toinformation of general interest aids the people in democraticdecision-making by giving them a better perspective of the vitalissues confronting the nation112 so that they may be able tocriticize and participate in the affairs of the government in aresponsible, reasonable and effective manner. It is by ensuringan unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to thechanges desired by the people.113

The MOA-AD is a matterof public concern

That the subject of the information sought in the present casesis a matter of public concern114 faces no serious challenge. In

111 Baldoza v. Dimaano, supra at 876.112 Legaspi v. Civil Service Commission, supra note 109.113 Chavez v. PCGG, 360 Phil 133, 164 (1998).114 In Legaspi v. Civil Service Commission, supra note 109 at 541, it was

held that:

In determining whether or not a particular information isof public concern there is no rigid test which can beapplied. ‘Public concern’ like ‘public interest’ is a termthat eludes exact definition. Both terms embrace a broadspectrum of subjects which the public may want to know,either because these directly affect their lives, or simply


fact, respondents admit that the MOA-AD is indeed of publicconcern.115 In previous cases, the Court found that the regularityof real estate transactions entered in the Register of Deeds,116

the need for adequate notice to the public of the various laws,117

the civil service eligibility of a public employee,118 the propermanagement of GSIS funds allegedly used to grant loans to publicofficials,119 the recovery of the Marcoses’ alleged ill-gottenwealth,120 and the identity of party-list nominees,121 amongothers, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involvingas it does 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 toinformation include steps and negotiations leading to theconsummation of the contract. In not distinguishing as to theexecutory nature or commercial character of agreements, theCourt has categorically ruled:

x x x [T]he right to information “contemplates inclusion ofnegotiations leading to the consummation of the transaction.”Certainly, a consummated contract is not a requirement for

because such matters naturally arouse the interest of anordinary citizen. In the final analysis, it is for the courts todetermine on a case by case basis whether the matter atissue is of interest or importance, as it relates to or affectsthe public.

115 Respondents’ Comment of August 4, 2008, p. 9.116 Subido v. Ozaeta, supra note 108.117 Tañada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Tañada, v.

Hon. Tuvera, 230 Phil. 528 (1986).118 Legaspi v. Civil Service Commission, supra note 109.119 Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170

SCRA 256.120 Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102.121 Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R.

177271, May 4, 2007, 523 SCRA 1.


the exercise of the right to information. Otherwise, the peoplecan never exercise the right if no contract is consummated,and if one is consummated, it may be too late for the public toexpose its defects.

Requiring a consummated contract will keep the public in thedark until the contract, which may be grossly disadvantageousto the government or even illegal, becomes fait accompli. Thisnegates the State policy of full transparency on matters ofpublic concern, a situation which the framers of theConstitution could not have intended. Such a requirement willprevent the citizenry from participating in the publicdiscussion of any proposed contract, effectively truncating abasic right enshrined in the Bill of Rights. We can allow neitheran emasculation of a constitutional right, nor a retreat by theState of its avowed “policy of full disclosure of all itstransactions involving public interest.”122 (Emphasis anditalics in the original)

Intended as a “splendid symmetry”123 to the right toinformation under the Bill of Rights is the policy of publicdisclosure under Section 28, Article II of the Constitutionreading:

SEC. 28. Subject to reasonable conditions prescribed by law,the State adopts and implements a policy of full publicdisclosure of all its transactions involving public interest.124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to informationon matters of public concern found in the Bill of Rights. Theright to information guarantees the right of the people to

122 Chavez v. Public Estates Authority, 433 Phil. 506, 532–533 (2002).123 Vide V RECORD, CONSTITUTIONAL COMMISSION 26–28 (September 24, 1986)

which is replete with such descriptive phrase used by CommissionerBlas Ople.

124 CONSTITUTION, Article II, Section 28.


demand information, while Section 28 recognizes the duty ofofficialdom to give information even if nobody demands.125

The policy of public disclosure establishes a concrete ethicalprinciple for the conduct of public affairs in a genuinely opendemocracy, with the people’s right to know as the centerpiece.It is a mandate of the State to be accountable by following suchpolicy.126 These provisions are vital to the exercise of thefreedom of expression and essential to hold public officials atall times accountable to the people.127

Whether Section 28 is self-executory, the records of thedeliberations of the Constitutional Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policywill not be enunciated or will not be in force and effect untilafter Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethicsimmediately but, of course, the implementing law will have tobe enacted by Congress, Mr. Presiding Officer.128

The following discourse, after Commissioner Hilario Davide,Jr., sought clarification on the issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr.Presiding Officer, did I get the Gentleman correctly as havingsaid that this is not a self-executing provision? It would requirea legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, butI accepted an amendment from Commissioner Regalado, sothat the safeguards on national interest are modified by theclause “as may be provided by law.”

125 Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: ACOMMENTARY 100 (2003).

126 Vide Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS 155(1995).

127 Vide Chavez v. Public Estates Authority, 439 Phil. 506 (2002).128 V RECORD, CONSTITUTIONAL COMMISSION 25 (September 24, 1986).


MR. DAVIDE. But as worded, does it not mean that this willimmediately take effect and Congress may provide forreasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlierthat it should immediately influence the climate of the conductof public affairs but, of course, Congress here may no longerpass a law revoking it, or if this is approved, revoking thisprinciple, which is inconsistent with this policy.129 (Emphasissupplied)

Indubitably, the effectivity of the policy of public disclosureneed not await the passing of a statute. As Congress cannotrevoke this principle, it is merely directed to provide for“reasonable safeguards.” The complete and effective exerciseof the right to information necessitates that its complementaryprovision on public disclosure derive the same self-executorynature. Since both provisions go hand-in-hand, it is absurd tosay that the broader130 right to information on matters of publicconcern is already enforceable while the correlative duty ofthe State to disclose its transactions involving public interest isnot enforceable until there is an enabling law. Respondentscannot thus point to the absence of an implementing legislationas an excuse in not effecting such policy.

An essential element of these freedoms is to keep open acontinuing dialogue or process of communication between the129 V RECORD, CONSTITUTIONAL COMMISSION 28–29 (September 24, 1986). The

phrase “safeguards on national interest” that may be provided bylaw was subsequently replaced by “reasonable conditions,” asproposed by Commissioner Davide [vide V Record, CONSTITUTIONAL

COMMISSION 30 (September 24, 1986)].130 In Chavez v. National Housing Authority, G.R. No. 164527, August

15, 2007, 530 SCRA 235, 331, the Court stated:

x x x The duty to disclose covers only transactionsinvolving public interest, while the duty to allow accesshas a broader scope of information which embraces notonly transactions involving public interest, but any mattercontained in official communications and publicdocuments of the government agency. (Underscoringsupplied)


government and the people. It is in the interest of the Statethat the channels for free political discussion be maintained tothe end that the government may perceive and be responsiveto the people’s will.131 Envisioned to be corollary to the twinrights to information and disclosure is the design for feedbackmechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, willthe people be able to participate? Will the government providefeedback mechanisms so that the people can participate andcan react where the existing media facilities are not able toprovide full feedback mechanisms to the government? Isuppose this will be part of the government implementingoperational mechanisms.

MR. OPLE. Yes. I think through their elected representativesand that is how these courses take place. There is a messageand a feedback, both ways.

x x x x

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make onelast sentence?

I think when we talk about the feedback network, we are nottalking about public officials but also network of private businesso[r] community-based organizations that will be reacting. As amatter of fact, we will put more credence or credibility on theprivate network of volunteers and voluntary community-basedorganizations. So I do not think we are afraid that there will beanother OMA in the making.132 (Emphasis supplied)

The imperative of a public consultation, as a species of theright to information, is evident in the “marching orders” torespondents. The mechanics for the duty to disclose informationand to conduct public consultation regarding the peace agendaand process is manifestly provided by E.O. No. 3.133 Thepreambulatory clause of E.O. No. 3 declares that there is a needto further enhance the contribution of civil society to the131 Valmonte v. Belmonte, Jr., supra note 119.132 V RECORD, CONSTITUTIONAL COMMISSION 28, 30 (September 24, 1986).133 Supra note 55.


comprehensive peace process by institutionalizing the people’sparticipation.

One of the three underlying principles of thecomprehensive peace process is that it “should be community-based, reflecting the sentiments, values and principlesimportant to all Filipinos” and “shall be defined not by thegovernment alone, nor by the different contending groups only,but by all Filipinos as one community.”134 Included as acomponent of the comprehensive peace process is consensus-building and empowerment for peace, which includes“continuing consultations on both national and local levels tobuild consensus for a peace agenda and process, and themobilization and facilitation of people’s participation in thepeace process.”135

Clearly, E.O. No. 3 contemplates not just the conduct of aplebiscite to effectuate “continuing” consultations, contraryto respondents’ position that plebiscite is “more than sufficientconsultation.”136

Further, E.O. No. 3 enumerates the functions andresponsibilities of the PAPP, one of which is to “[c]onductregular dialogues with the National Peace Forum (NPF) andother peace partners to seek relevant information, comments,recommendations as well as to render appropriate and timelyreports on the progress of the comprehensive peace process.”137

E.O. No. 3 mandates the establishment of the NPF to be “theprincipal forum for the PAPP to consult with and seek advi[c]efrom the peace advocates, peace partners and concerned sectorsof society on both national and local levels, on theimplementation of the comprehensive peace process, as wellas for government[-]civil society dialogue and consensus-building on peace agenda and initiatives.”138

134 EXECUTIVE ORDER NO. 3 (2001), Section 3(a).135 EXECUTIVE ORDER NO. 3 (2001), Section 4(b).136 Respondents’ Memorandum of September 24, 2008, p. 44.137 EXECUTIVE ORDER No. 3 (2001), Section 5(b), paragraph 6.138 EXECUTIVE ORDER No. 3 (2001), Section 8, see also Section 10.


In fine, E.O. No. 3 establishes petitioners’ right to beconsulted on the peace agenda, as a corollary to theconstitutional right to information and disclosure.

PAPP Esperon committedgrave abuse of discretion

The PAPP committed grave abuse of discretion when he failedto carry out the pertinent consultation. The furtive process bywhich the MOA-AD was designed and crafted runs contrary toand in excess of the legal authority, and amounts to a whimsical,capricious, oppressive, arbitrary and despotic exercise thereof.

The Court may not, of course, require the PAPP to conductthe consultation in a particular way or manner. It may, however,require him to comply with the law and discharge the functionswithin the authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table,contrary to respondents’ retort in justifying the denial ofpetitioners’ right to be consulted. Respondents’ stancemanifests the manner by which they treat the salient provisionsof E.O. No. 3 on people’s participation. Such disregard of theexpress mandate of the President is not much different fromsuperficial conduct toward token provisos that border on classiclip service.140 It illustrates a gross evasion of positive duty and avirtual refusal to perform the duty enjoined.

As for respondents’ invocation of the doctrine of executiveprivilege, it is not tenable under the premises. The argumentdefies sound reason when contrasted with E.O. No. 3’s explicit139 Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7,

1989, 177 SCRA 374, 382–384 where it was held that the OmnibusInvestment Code of 1987 mandates the holding of consultationswith affected communities, whenever necessary, on theacceptability of locating the registered enterprise within thecommunity.

140 In their Memorandum, respondents made allegations purportingto show that consultations were conducted on August 30, 2001 inMarawi City and Iligan City, on September 20, 2001 in Midsayap,Cotabato, and on January 18–19, 2002 in Metro Manila.(Memorandum of September 24, 2008, p. 13)


provisions on continuing consultation and dialogue on bothnational and local levels. The executive order even recognizesthe exercise of the public’s right even before the GRP makes itsofficial recommendations or before the government proffersits definite propositions.141 It bear emphasis that E.O. No. 3seeks to elicit relevant advice, information, comments andrecommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defenseof executive privilege in view of their unqualified disclosure ofthe official copies of the final draft of the MOA-AD. Byunconditionally complying with the Court’s August 4, 2008Resolution, without a prayer for the document’s disclosure incamera, or without a manifestation that it was complyingtherewith ex abundante ad cautelam.

Petitioners’ assertion that the Local Government Code (LGC)of 1991 declares it a State policy to “require all national agenciesand offices to conduct periodic consultations with appropriatelocal government units, non-governmental and people’sorganizations, and other concerned sectors of the communitybefore any project or program is implemented in theirrespective jurisdictions”142 is well-taken. The LGC chapter onintergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. – No project or program shall beimplemented by government authorities unless theconsultations mentioned in Sections 2 (c) and 26 hereof arecomplied with, and prior approval of the sanggunianconcerned is obtained: Provided, That occupants in areaswhere such projects are to be implemented shall not be evictedunless appropriate relocation sites have been provided, inaccordance with the provisions of the Constitution.143 (Italicsand underscoring supplied)

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision of the LGU apply only141 Cf. Chavez v. Public Estates Authority, supra note 120.142 REPUBLIC ACT NO. 7160, Section 2(c).143 REPUBLIC ACT NO. 7160, Section 27.144 416 Phil. 438 (2001).


to national programs or projects which are to be implementedin a particular local community. Among the programs andprojects covered are those that are critical to the environmentand human ecology including those that may call for the evictionof a particular group of people residing in the locality wherethese will be implemented.145 The MOA-AD is one peculiarprogram that unequivocally and unilaterally vests ownershipof a vast territory to the Bangsamoro people,146 which couldpervasively and drastically result to the diaspora or displacementof a great number of inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are representedherein by petitioner Lopez and are adversely affected by theMOA-AD, the ICCs/IPs have, under the IPRA, the right toparticipate fully at all levels of decision-making in matters whichmay affect their rights, lives and destinies.147 The MOA-AD, aninstrument recognizing ancestral domain, failed to justify itsnon-compliance with the clear-cut mechanisms ordained in saidAct,148 which entails, among other things, the observance ofthe free and prior informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Departmentor any government agency the power to delineate and recognizean ancestral domain claim by mere agreement or compromise.The recognition of the ancestral domain is the raison d’etre ofthe MOA-AD, without which all other stipulations or “consensuspoints” necessarily must fail. In proceeding to make a sweepingdeclaration on ancestral domain, without complying with theIPRA, which is cited as one of the TOR of the MOA-AD,145 Id.; Vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243, November

29, 2006, 508 SCRA 498; Cf. Bangus Fry Fisherfolk v. Lanzanas, 453Phil. 479 (2002).

146 Vide MOA-AD “Concepts and Principles,” paragraphs 2 and 7 inrelation to “Resources,” paragraph 9 where vested property rightsare made subject to the cancellation, modification and review bythe Bangsamoro Juridical Entity.

147 REPUBLIC ACT NO. 8371 or “THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997,”Section 16.

148 Id. Section 3(g), Chapter VIII, inter alia.


respondents clearly transcended the boundaries of theirauthority. As it seems, even the heart of the MOA-AD is stillsubject to necessary changes to the legal framework. Whileparagraph 7 on Governance suspends the effectivity of allprovisions requiring changes to the legal framework, such clauseis itself invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of thegovernment subject to public scrutiny and available always topublic cognizance. This has to be so if the country is to remaindemocratic, with sovereignty residing in the people and allgovernment authority emanating from them.149

On the Second Substantive Issue

With regard to the provisions of the MOA-AD, there can be noquestion that they cannot all be accommodated under thepresent Constitution and laws. Respondents have admitted asmuch in the oral arguments before this Court, and the MOA-ADitself recognizes the need to amend the existing legalframework to render effective at least some of its provisions.Respondents, nonetheless, counter that the MOA-AD is free ofany legal infirmity because any provisions therein which areinconsistent with the present legal framework will not beeffective until the necessary changes to that framework aremade. The validity of this argument will be considered later.For now, the Court shall pass upon how.

The MOA-AD is inconsistentwith the Constitutionand laws as presently worded.

In general, the objections against the MOA-AD center on theextent of the powers conceded therein to the BJE. Petitionersassert that the powers granted to the BJE exceed those grantedto any local government under present laws, and even gobeyond those of the present ARMM. Before assessing some ofthe specific powers that would have been vested in the BJE,however, it would be useful to turn first to a general idea thatserves as a unifying link to the different provisions of the MOA-149 Tañada v. Tuvera, No. L-63915, December 29, 1986, 146 SCRA 446,

456.


AD, namely, the international law concept of association.Significantly, the MOA-AD explicitly alludes to this concept,indicating that the Parties actually framed its provisions with itin mind.

Association is referred to in paragraph 3 on TERRITORY,paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE.It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationshipbetween the BJE and the Central Government.

4. The relationship between the Central Government andthe Bangsamoro juridical entity shall be associativecharacterized by shared authority and responsibility witha structure of governance based on executive, legislative,judicial and administrative institutions with definedpowers and functions in the comprehensive compact. Aperiod of transition shall be established in acomprehensive peace compact specifying the relationshipbetween the Central Government and the BJE. (Emphasisand underscoring supplied)

The nature of the “associative” relationship may have beenintended to be defined more precisely in the still to be forgedComprehensive Compact. Nonetheless, given that there is aconcept of “association” in international law, and the MOA-AD– by its inclusion of international law instruments in its TOR–placed itself in an international legal context, that concept ofassociation may be brought to bear in understanding the use ofthe term “associative” in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal powervoluntarily establish durable links. In the basic model, onestate, the associate, delegates certain responsibilities to theother, the principal, while maintaining its international statusas a state. Free associations represent a middle groundbetween integration and independence. x x x150 (Emphasisand underscoring supplied)

150 C.I. Keitner and W.M. Reisman, FREE ASSOCIATION: THE UNITED STATES EXPERIENCE,39 Tex. Int’l L.J. 1 (2003).


For purposes of illustration, the Republic of the MarshallIslands and the Federated States of Micronesia (FSM), formerlypart of the U.S.-administered Trust Territory of the PacificIslands,151 are associated states of the U.S. pursuant to aCompact of Free Association. The currency in these countries isthe U.S. dollar, indicating their very close ties with the U.S., yetthey issue their own travel documents, which is a mark of theirstatehood. Their international legal status as states wasconfirmed by the UN Security Council and by their admission toUN membership.

According to their compacts of free association, the MarshallIslands and the FSM generally have the capacity to conductforeign affairs in their own name and right, such capacityextending to matters such as the law of the sea, marineresources, trade, banking, postal, civil aviation, and culturalrelations. The U.S. government, when conducting its foreignaffairs, is obligated to consult with the governments of theMarshall Islands or the FSM on matters which it (U.S.government) regards as relating to or affecting eithergovernment.

In the event of attacks or threats against the Marshall Islandsor the FSM, the U.S. government has the authority and obligationto defend them as if they were part of U.S. territory. The U.S.government, moreover, has the option of establishing and usingmilitary areas and facilities within these associated states andhas the right to bar the military personnel of any third countryfrom having access to these territories for military purposes.

It bears noting that in U.S. constitutional and internationalpractice, free association is understood as an internationalassociation between sovereigns. The Compact of FreeAssociation is a treaty which is subordinate to the associatednation’s national constitution, and each party may terminatethe association consistent with the right of independence. Ithas been said that, with the admission of the U.S. associated

151 “The former Trust Territory of the Pacific Islands is made up of theCaroline Islands, the Marshall Islands, and the Northern MarianaIslands, which extend east of the Philippines and northeast ofIndonesia in the North Pacific Ocean.” (Ibid.)


states to the UN in 1990, the UN recognized that the Americanmodel of free association is actually based on an underlyingstatus of independence.152

In international practice, the “associated state” arrangementhas usually been used as a transitional device of former colonieson their way to full independence. Examples of states that havepassed through the status of associated states as a transitionalphase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia,St. Vincent and Grenada. All have since become independentstates.153

Back to the MOA-AD, it contains many provisions which areconsistent with the international legal concept of association,specifically the following: the BJE’s capacity to enter intoeconomic and trade relations with foreign countries, thecommitment of the Central Government to ensure the BJE’sparticipation in meetings and events in the ASEAN and thespecialized UN agencies, and the continuing responsibility ofthe Central Government over external defense. Moreover, theBJE’s right to participate in Philippine official missions bearingon negotiation of border agreements, environmentalprotection, and sharing of revenues pertaining to the bodies ofwater adjacent to or between the islands forming part of theancestral domain, resembles the right of the governments ofFSM and the Marshall Islands to be consulted by the U.S.government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things,that the Parties aimed to vest in the BJE the status of anassociated state or, at any rate, a status closely approximatingit.

The concept of association is notrecognized under the presentConstitution

No province, city, or municipality, not even the ARMM, isrecognized under our laws as having an “associative”152 H. Hills, FREE ASSOCIATION FOR MICRONESIA AND THE MARSHALL ISLANDS: A POLITICAL

STATUS MODEL, 27 U. Haw. L. Rev. 1 (2004).153 Henkin, et al., INTERNATIONAL LAW: CASES AND MATERIALS, 2nd ed., 274 (1987).


relationship with the national government. Indeed, the conceptimplies powers that go beyond anything ever granted by theConstitution to any local or regional government. It also impliesthe recognition of the associated entity as a state. TheConstitution, however, does not contemplate any state in thisjurisdiction other than the Philippine State, much less does itprovide for a transitory status that aims to prepare any part ofPhilippine territory for independence.

Even the mere concept animating many of the MOA-AD’sprovisions, therefore, already requires for its validity theamendment of constitutional provisions, specifically thefollowing provisions of Article X:

SECTION 1. The territorial and political subdivisions of theRepublic of the Philippines are the provinces, cities,municipalities, and barangays. There shall be autonomousregions in Muslim Mindanao and the Cordilleras as hereinafterprovided.

SEC. 15. There shall be created autonomous regions in MuslimMindanao and in the Cordilleras consisting of provinces,cities, municipalities, and geographical areas sharingcommon and distinctive historical and cultural heritage,economic and social structures, and other relevantcharacteristics within the framework of this Constitution andthe national sovereignty as well as territorial integrity of theRepublic of the Philippines.

The BJE is a far more powerfulentity than the autonomous regionrecognized in the Constitution

It is not merely an expanded version of the ARMM, the status ofits relationship with the national government beingfundamentally different from that of the ARMM. Indeed, BJE isa state in all but name as it meets the criteria of a state laiddown in the Montevideo Convention,154 namely, a permanent

154 Convention on Rights and Duties of States, December 26, 1933, 49Stat. 3097, 165 L.N.T.S. 19.


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

Even assuming arguendo that the MOA-AD would notnecessarily sever any portion of Philippine territory, the spiritanimating it – which has betrayed itself by its use of the conceptof association – runs counter to the national sovereignty andterritorial integrity of the Republic.

The defining concept underlying the relationship betweenthe national government and the BJE being itself contrary tothe present Constitution, it is not surprising that many of thespecific provisions of the MOA-AD on the formation and powersof the BJE are in conflict with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that “[t]hecreation of the autonomous region shall be effective whenapproved by a majority of the votes cast by the constituentunits in a plebiscite called for the purpose, provided that onlyprovinces, cities, and geographic areas voting favorably in suchplebiscite shall be included in the autonomous region.”(Emphasis supplied)

As reflected above, the BJE is more of a state than anautonomous region. But even assuming that it is covered bythe term “autonomous region” in the constitutional provisionjust quoted, the MOA-AD would still be in conflict with it. Underparagraph 2(c) on TERRITORY in relation to 2(d) and 2(e), thepresent geographic area of the ARMM and, in addition, themunicipalities of Lanao del Norte which voted for inclusion inthe ARMM during the 2001 plebiscite – Baloi, Munai, Nunungan,Pantar, Tagoloan and Tangkal – are automatically part of theBJE without need of another plebiscite, in contrast to the areasunder 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 underthe Constitution, precisely because what these areas voted forthen was their inclusion in the ARMM, not the BJE.


The MOA-AD, moreover, would notcomply with Article X, Section 20 ofthe Constitution

since that provision defines the powers of autonomous regionsas follows:

SEC. 20. Within its territorial jurisdiction and subject tothe provisions of this Constitution and national laws,the organic act of autonomous regions shall provide forlegislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the culturalheritage; and

(9) Such other matters as may be authorized by law forthe promotion of the general welfare of the peopleof the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as anautonomous region, the MOA-AD would require an amendmentthat would expand the above-quoted provision. The merepassage of new legislation pursuant to sub-paragraph No. 9 ofsaid constitutional provision would not suffice, since any newlaw that might vest in the BJE the powers found in the MOA-ADmust, itself, comply with other provisions of the Constitution.It would not do, for instance, to merely pass legislation vestingthe BJE with treaty-making power in order to accommodateparagraph 4 of the strand on RESOURCES which states: “The BJEis free to enter into any economic cooperation and traderelations with foreign countries: provided, however, that suchrelationships and understandings do not include aggression


against the Government of the Republic of the Philippinesx x x.” Under our constitutional system, it is only the Presidentwho has that power. Pimentel v. Executive Secretary155 instructs:

In our system of government, the President, being the head ofstate, is regarded as the sole organ and authority in externalrelations and is the country’s sole representative with foreignnations. As the chief architect of foreign policy, the Presidentacts as the country’s mouthpiece with respect to internationalaffairs. Hence, the President is vested with the authority todeal with foreign states and governments, extend or withholdrecognition, maintain diplomatic relations, enter into treaties,and otherwise transact the business of foreign relations. Inthe realm of treaty-making, the President has the soleauthority to negotiate with other states. (Emphasis andunderscoring supplied)

Article II, Section 22 of the Constitution must also beamended if the scheme envisioned in the MOA-AD is to beeffected. That constitutional provision states: “The Staterecognizes and promotes the rights of indigenous culturalcommunities within the framework of national unity anddevelopment.” (Underscoring supplied) An associativearrangement does not uphold national unity. While there maybe a semblance of unity because of the associative ties betweenthe BJE and the national government, the act of placing a portionof Philippine territory in a status which, in international practice,has generally been a preparation for independence, is certainlynot conducive to national unity.

Besides being irreconcilable with theConstitution, the MOA-AD is alsoinconsistent with prevailing statutorylaw, among which are RA No. 9054156

155 G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.156 AN ACT TO STRENGTHEN AND EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS REGION

IN MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 6734,ENTITLED ‘AN ACT PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO,’AS AMENDED, MARCH 31, 2001.


or the Organic Act of the ARMM,and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar tothe adoption of the definition of “Bangsamoro people” used inthe MOA-AD. Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoplesof Mindanao to identify themselves and be accepted as“Bangsamoros.” The Bangsamoro people refers to thosewho are natives or original inhabitants of Mindanao andits adjacent islands including Palawan and the Suluarchipelago at the time of conquest or colonization of itsdescendants whether mixed or of full blood. Spouses andtheir descendants are classified as Bangsamoro. Thefreedom of choice of the Indigenous people shall berespected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with thatfound in the Article X, Section 3 of the Organic Act, which, ratherthan lumping together the identities of the Bangsamoro andother indigenous peoples living in Mindanao, clearlydistinguishes between Bangsamoro people and Tribal peoples,as follows:

As used in this Organic Act, the phrase “indigenouscultural community” refers to Filipino citizens residingin the autonomous region who are:

(a) Tribal peoples. These are citizens whose social,cultural and economic conditions distinguish themfrom other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who arebelievers in Islam and who have retained some orall of their own social, economic, cultural, andpolitical institutions.

157 AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL

COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS

PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR,AND FOR OTHER PURPOSES, OCTOBER 29, 1997.


Respecting the IPRA, it lays down the prevailing procedurefor the delineation and recognition of ancestral domains. TheMOA-AD’s manner of delineating the ancestral domain of theBangsamoro people is a clear departure from that procedure.By paragraph 1 of TERRITORY, the Parties simply agree that,subject to the delimitations in the agreed Schedules, “[t]heBangsamoro homeland and historic territory refer to the landmass as well as the maritime, terrestrial, fluvial and alluvialdomains, and the aerial domain, the atmospheric space aboveit, embracing the Mindanao-Sulu-Palawan geographic region.”

Chapter VIII of the IPRA, on the other hand, lays down adetailed procedure, as illustrated in the following provisionsthereof:

SEC. 52. Delineation Process. – The identification and delineationof ancestral domains shall be done in accordance with thefollowing procedures:

x x x x

b) Petition for Delineation. – The process of delineating aspecific perimeter may be initiated by the NCIP with theconsent of the ICC/IP concerned, or through a Petition forDelineation filed with the NCIP, by a majority of themembers of the ICCs/IPs;

c) Delineation Proper. – The official delineation of ancestraldomain boundaries including census of all communitymembers therein, shall be immediately undertaken by theAncestral Domains Office upon filing of the applicationby the ICCs/IPs concerned. Delineation will be done incoordination with the community concerned and shall atall times include genuine involvement and participationby the members of the communities concerned;

d) Proof Required. – Proof of Ancestral Domain Claims shallinclude the testimony of elders or community under oath,and other documents directly or indirectly attesting tothe possession or occupation of the area since timeimmemorial by such ICCs/IPs in the concept of ownerswhich shall be any one of the following authenticdocuments:


1) Written accounts of the ICCs/IPs customs andtraditions;

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

3) Pictures showing long term occupation such as thoseof old improvements, burial grounds, sacred placesand old villages;

4) Historical accounts, including pacts and agreementsconcerning boundaries entered into by the ICCs/IPsconcerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditionalcommunal forests and hunting grounds;

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

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

e) Preparation of Maps. – On the basis of such investigationand the findings of fact based thereon, the AncestralDomains Office of the NCIP shall prepare a perimeter map,complete with technical descriptions, and a descriptionof the natural features and landmarks embraced therein;

f) Report of Investigation and Other Documents. – A completecopy of the preliminary census and a report ofinvestigation, shall be prepared by the Ancestral DomainsOffice 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 thereinfor at least 15 days. A copy of the document shall also beposted at the local, provincial and regional offices of the


NCIP, and shall be published in a newspaper of generalcirculation once a week for two consecutive weeks toallow other claimants to file opposition thereto within 15days from date of such publication: Provided, That in areaswhere no such newspaper exists, broadcasting in a radiostation will be a valid substitute: Provided, further, Thatmere posting shall be deemed sufficient if both newspaperand radio station are not available;

h) Endorsement to NCIP. – Within 15 days from publication,and of the inspection process, the Ancestral DomainsOffice shall prepare a report to the NCIP endorsing afavorable action upon a claim that is deemed to havesufficient proof. However, if the proof is deemedinsufficient, the Ancestral Domains Office shall requirethe submission of additional evidence: Provided, That theAncestral Domains Office shall reject any claim that isdeemed patently false or fraudulent after inspection andverification: Provided, further, That in case of rejection,the Ancestral Domains Office shall give the applicant duenotice, copy furnished all concerned, containing thegrounds for denial. The denial shall be appealable to theNCIP: Provided, furthermore, That in cases where there areconflicting claims among ICCs/IPs on the boundaries ofancestral domain claims, the Ancestral Domains Officeshall cause the contending parties to meet and assist themin coming up with a preliminary resolution of the conflict,without prejudice to its full adjudication according to thesection below.

x x x x

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only theConstitution and domestic statutes, but also of internationallaw is in order, for

Article II, Section 2 of the Constitutionstates that the Philippines “adopts thegenerally accepted principles ofinternational law as part of the law ofthe land.”


Applying this provision of the Constitution, the Court, in Mejoffv. Director of Prisons,158 held that the Universal Declaration ofHuman Rights is part of the law of the land on account of whichit ordered the release on bail of a detained alien of Russiandescent whose deportation order had not been executed evenafter two years. Similarly, the Court in Agustin v. Edu159 appliedthe aforesaid constitutional provision to the 1968 V iennaConvention on Road Signs and Signals.

International law has long recognized the right to self-determination of “peoples,” understood not merely as theentire population of a State but also a portion thereof. Inconsidering the question of whether the people of Quebec hada right to unilaterally secede from Canada, the CanadianSupreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasionto acknowledge that “the right of a people to self-determinationis now so widely recognized in international conventions thatthe principle has acquired a status beyond ‘convention’ and isconsidered a general principle of international law.”

Among the conventions referred to are the InternationalCovenant on Civil and Political Rights161 and the InternationalCovenant on Economic, Social and Cultural Rights162 which state,in Article 1 of both covenants, that all peoples, by virtue of theright of self-determination, “freely determine their politicalstatus and freely pursue their economic, social, and culturaldevelopment.”

The people’s right to self-determination should not,however, be understood as extending to a unilateral right ofsecession. A distinction should be made between the right ofinternal and external self-determination. REFERENCE RESECESSION OF QUEBEC is again instructive:

158 90 Phil. 70, 73–74 (1951).159 177 Phil. 160, 178–179 (1979).160 2 S.C.R. 217 (1998).161 999 U.N.T.S. 171 (March 23, 1976).162 993 U.N.T.S. 3 (January 3, 1976).


(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establishthat the right to self-determination of a people isnormally fulfilled through internal self-determination –a people’s pursuit of its political, economic, social andcultural development within the framework of anexisting state. A right to external self-determination(which in this case potentially takes the form of theassertion of a right to unilateral secession) arises in onlythe most extreme of cases and, even then, undercarefully defined circumstances. x x x.

External self-determination can be defined as in thefollowing statement from the Declaration on FriendlyRelations, supra, as

The establishment of a sovereign and independentState, the free association or integration with anindependent State or the emergence into any otherpolitical status freely determined by a people constitutemodes of implementing the right of self-determinationby that people. (Emphasis added)

127. The international law principle of self-determination hasevolved within a framework of respect for the territorialintegrity of existing states. The various internationaldocuments that support the existence of a people’s rightto self-determination also contain parallel statementssupportive of the conclusion that the exercise of such aright must be sufficiently limited to prevent threats toan existing state’s territorial integrity or the stability ofrelations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional casesin which the right to external self-determination can arise,namely, where a people is under colonial rule, is subject toforeign domination or exploitation outside a colonial context,and – less definitely but asserted by a number of commentators– is blocked from the meaningful exercise of its right to internalself-determination. The Court ultimately held that the


population of Quebec had no right to secession, as the same isnot under colonial rule or foreign domination, nor is it beingdeprived of the freedom to make political choices and pursueeconomic, social and cultural development, citing that Quebecis equitably represented in legislative, executive and judicialinstitutions within Canada, even occupying prominent positionstherein.

The exceptional nature of the right of secession is furtherexemplified in the REPORT OF THE INTERNATIONAL COMMITTEEOF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDSQUESTION.163 There, Sweden presented to the Council of theLeague of Nations the question of whether the inhabitants ofthe Aaland Islands should be authorized to determine byplebiscite if the archipelago should remain under Finnishsovereignty or be incorporated in the kingdom of Sweden. TheCouncil, before resolving the question, appointed anInternational Committee composed of three jurists to submitan opinion on the preliminary issue of whether the disputeshould, based on international law, be entirely left to thedomestic jurisdiction of Finland. The Committee stated the ruleas follows:

x x x [I]n the absence of express provisions in internationaltreaties, the right of disposing of national territory is essentiallyan attribute of the sovereignty of every State. PositiveInternational Law does not recognize the right of nationalgroups, as such, to separate themselves from the State ofwhich they form part by the simple expression of a wish, anymore than it recognizes the right of other States to claim sucha separation. Generally speaking, the grant or refusal of theright to a portion of its population of determining its ownpolitical fate by plebiscite or by some other method, is,exclusively, an attribute of the sovereignty of every State whichis definitively constituted. A dispute between two Statesconcerning such a question, under normal conditions therefore,bears upon a question which International Law leaves entirelyto the domestic jurisdiction of one of the States concerned.Any other solution would amount to an infringement of

163 League of Nations Official Journal, Special Supp. No. 3 (October1920).


sovereign rights of a State and would involve the risk of creatingdifficulties and a lack of stability which would not only becontrary to the very idea embodied in term “State,” but wouldalso endanger the interests of the international community. Ifthis right is not possessed by a large or small section of anation, neither can it be held by the State to which the nationalgroup wishes to be attached, nor by any other State. (Emphasisand underscoring supplied)

The Committee held that the dispute concerning the AalandIslands did not refer to a question which is left by internationallaw to the domestic jurisdiction of Finland, thereby applyingthe exception rather than the rule elucidated above. Its groundfor departing from the general rule, however, was a very narrowone, namely, the Aaland Islands agitation originated at a timewhen Finland was undergoing drastic political transformation.The internal situation of Finland was, according to theCommittee, so abnormal that, for a considerable time, theconditions required for the formation of a sovereign State didnot exist. In the midst of revolution, anarchy, and civil war, thelegitimacy of the Finnish national government was disputed bya large section of the people, and it had, in fact, been chasedfrom the capital and forcibly prevented from carrying out itsduties. The armed camps and the police were divided into twoopposing forces. In light of these circumstances, Finland wasnot, during the relevant time period, a “definitively constituted”sovereign state. The Committee, therefore, found that Finlanddid not possess the right to withhold from a portion of itspopulation the option to separate itself – a right which sovereignnations generally have with respect to their own populations.

Turning now to the more specific category of indigenouspeoples, this term has been used, in scholarship as well asinternational, regional, and state practices, to refer to groupswith distinct cultures, histories, and connections to land(spiritual and otherwise) that have been forcibly incorporatedinto a larger governing society. These groups are regarded as“indigenous” since they are the living descendants of pre-invasion inhabitants of lands now dominated by others.Otherwise stated, indigenous peoples, nations, or communitiesare culturally distinctive groups that find themselves engulfed


by settler societies born of the forces of empire and conquest.164

Examples of groups who have been regarded as indigenouspeoples are the Maori of New Zealand and the aboriginalpeoples of Canada.

As with the broader category of “peoples,” indigenouspeoples situated within states do not have a general right toindependence or secession from those states underinternational law,165 but they do have rights amounting to whatwas discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UNGeneral Assembly adopted the United Nations Declaration onthe Rights of Indigenous Peoples (UN DRIP) through GeneralAssembly Resolution 61/295. The vote was 143 to 4, thePhilippines being included among those in favor, and the fourvoting against being Australia, Canada, New Zealand, and theU.S. The Declaration clearly recognized the right of indigenouspeoples to self-determination, encompassing the right toautonomy or self-government, to wit:

ARTICLE 3

Indigenous peoples have the right to self-determination. Byvirtue of that right they freely determine their political statusand freely pursue their economic, social and culturaldevelopment.

ARTICLE 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government

164 Lorie M. Graham, RESOLVING INDIGENOUS CLAIMS TO SELF-DETERMINATION, 10ILSA J. Int’l & Comp. L. 385 (2004). Vide S. James Anaya, SUPERPOWER

ATTITUDES TOWARD INDIGENOUS PEOPLES AND GROUP RIGHTS, 93 Am. Soc’y Int’l L.Proc. 251 (1999): “In general, the term indigenous is used inassociation with groups that maintain a continuity of culturalidentity with historical communities that suffered some form ofcolonial invasion, and that by virtue of that continuity of culturalidentity continue to distinguish themselves from others.”

165 Catherine J. Iorns, INDIGENOUS PEOPLES AND SELF DETERMINATION: CHALLENGING

STATE SOVEREIGNTY, 24 Case W. Res. J. Int’l L. 199 (1992).


in matters relating to their internal and local affairs, as well asways and means for financing their autonomous functions.

ARTICLE 5

Indigenous peoples have the right to maintain and strengthentheir distinct political, legal, economic, social and culturalinstitutions, while retaining their right to participate fully, ifthey so choose, in the political, economic, social and culturallife of the State.

Self-government, as used in international legal discoursepertaining to indigenous peoples, has been understood asequivalent to “internal self-determination.”166 The extent ofself-determination provided for in the UN DRIP is moreparticularly defined in its subsequent articles, some of whichare quoted hereunder:

ARTICLE 8

1. Indigenous peoples and individuals have the right not tobe subjected to forced assimilation or destruction of theirculture.

2. States shall provide effective mechanisms for preventionof, and redress for:

(a) Any action which has the aim or effect of deprivingthem of their integrity as distinct peoples, or of theircultural values or ethnic identities;

166 Federico Lenzerini, “SOVEREIGNTY REVISITED: INTERNATIONAL LAW AND PARALLEL

SOVEREIGNTY OF INDIGENOUS PEOPLES,” 42 Tex. Int’l L.J. 155 (2006). VideChristopher J. Fromherz, Indigenous Peoples’ Courts: EgalitarianJuridical Pluralism, Self-Determination, and the United NationsDeclaration on the Rights of Indigenous Peoples, 156 U. Pa. L. Rev.1341 (2008): “While Australia and the United States made much ofthe distinction between ‘self-government’ and ‘self-determination’on September 13, 2007, the U.S. statement to the UN on May 17,2004, seems to use these two concepts interchangeably. And, indeed,under the DRIP [Declaration on the Rights of Indigenous Peoples],all three terms should be considered virtually synonymous. Self-determination under the DRIP means ‘internal self-determination’when read in conjunction with Article 46, and ‘self-government,’articulated in Article 4, is the core of the ‘self-determination.’”


(b) Any action which has the aim or effect of dispossessingthem of their lands, territories or resources;

(c) Any form of forced population transfer which has theaim or effect of violating or undermining any of theirrights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or inciteracial or ethnic discrimination directed against them.

ARTICLE 21

1. Indigenous peoples have the right, without discrimination,to the improvement of their economic and socialconditions, including, inter alia, in the areas of education,employment, vocational training and retraining, housing,sanitation, health and social security.

2. States shall take effective measures and, whereappropriate, special measures to ensure continuingimprovement of their economic and social conditions.Particular attention shall be paid to the rights and specialneeds of indigenous elders, women, youth, children andpersons with disabilities.

ARTICLE 26

1. Indigenous peoples have the right to the lands, territoriesand resources which they have traditionally owned,occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, developand control the lands, territories and resources that theypossess by reason of traditional ownership or othertraditional occupation or use, as well as those which theyhave otherwise acquired.

3. States shall give legal recognition and protection to theselands, territories and resources. Such recognition shallbe conducted with due respect to the customs, traditionsand land tenure systems of the indigenous peoplesconcerned.


ARTICLE 30

1. Military activities shall not take place in the lands orterritories of indigenous peoples, unless justified by arelevant public interest or otherwise freely agreed with orrequested by the indigenous peoples concerned.

2. States shall undertake effective consultations with theindigenous peoples concerned, through appropriateprocedures and in particular through their representativeinstitutions, prior to using their lands or territories formilitary activities.

ARTICLE 32

1. Indigenous peoples have the right to determine anddevelop priorities and strategies for the development oruse of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with theindigenous peoples concerned through their ownrepresentative institutions in order to obtain their freeand informed consent prior to the approval of any projectaffecting their lands or territories and other resources,particularly in connection with the development,utilization or exploitation of mineral, water or otherresources.

3. States shall provide effective mechanisms for just andfair redress for any such activities, and appropriatemeasures shall be taken to mitigate adverseenvironmental, economic, social, cultural or spiritualimpact.

ARTICLE 37

1. Indigenous peoples have the right to the recognition,observance and enforcement of treaties, agreements andother constructive arrangements concluded with Statesor their successors and to have States honour and respectsuch treaties, agreements and other constructivearrangements.

2. Nothing in this Declaration may be interpreted asdiminishing or eliminating the rights of indigenous peoples


contained in treaties, agreements and other constructivearrangements.

ARTICLE 38

States in consultation and cooperation with indigenouspeoples, shall take the appropriate measures, includinglegislative measures, to achieve the ends of thisDeclaration.

Assuming that the UN DRIP, like the Universal Declarationon Human Rights, must now be regarded as embodyingcustomary international law – a question which the Court neednot definitively resolve here – the obligations enumeratedtherein do not strictly require the Republic to grant theBangsamoro people, through the instrumentality of the BJE,the particular rights and powers provided for in the MOA-AD.Even the more specific provisions of the UN DRIP are general inscope, allowing for flexibility in its application by the differentStates.

There is, for instance, no requirement in the UN DRIP thatStates now guarantee indigenous peoples their own police andinternal security force. Indeed, Article 8 presupposes that it isthe State which will provide protection for indigenous peoplesagainst acts like the forced dispossession of their lands – afunction that is normally performed by police officers. If theprotection of a right so essential to indigenous people’s identityis acknowledged to be the responsibility of the State, thensurely the protection of rights less significant to them as suchpeoples would also be the duty of States. Nor is there in the UNDRIP an acknowledgement of the right of indigenous peoplesto the aerial domain and atmospheric space. What it upholds,in Article 26 thereof, is the right of indigenous peoples to thelands, territories and resources which they have traditionallyowned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right ofindigenous peoples to autonomy, does not obligate States togrant indigenous peoples the near-independent status of anassociated state. All the rights recognized in that document arequalified in Article 46 as follows:


1. Nothing in this Declaration may be interpreted as implyingfor any State, people, group or person any right to engagein any activity or to perform any act contrary to the Charterof the United Nations or construed as authorizing orencouraging any action which would dismember or impair,totally or in part, the territorial integrity or political unityof sovereign and independent States.

Even if the UN DRIP were considered as part of the law ofthe land pursuant to Article II, Section 2 of the Constitution, itwould not suffice to uphold the validity of the MOA-AD so as torender its compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerousprovisions that cannot be reconciled with the Constitution andthe laws as presently worded. Respondents proffer, however,that the signing of the MOA-AD alone would not have entailedany violation of law or grave abuse of discretion on their part,precisely because it stipulates that the provisions thereofinconsistent with the laws shall not take effect until these lawsare amended. They cite paragraph 7 of the MOA-AD strand onGOVERNANCE quoted earlier, but which is reproduced belowfor convenience:

7. The Parties agree that the mechanisms and modalities forthe actual implementation of this MOA-AD shall be speltout in the Comprehensive Compact to mutually take suchsteps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments tothe existing legal framework shall come into force uponsigning of a Comprehensive Compact and upon effectingthe necessary changes to the legal framework with dueregard to non derogation of prior agreements and withinthe stipulated timeframe to be contained in theComprehensive Compact.

Indeed, the foregoing stipulation keeps many controversialprovisions of the MOA-AD from coming into force until thenecessary changes to the legal framework are effected. Whilethe word “Constitution” is not mentioned in the provision nowunder consideration or anywhere else in the MOA-AD, the term“legal framework” is certainly broad enough to include theConstitution.


Notwithstanding the suspensive clause, however,respondents, by their mere act of incorporating in the MOA-ADthe provisions thereof regarding the associative relationshipbetween the BJE and the Central Government, have alreadyviolated the Memorandum of Instructions From The Presidentdated March 1, 2001, which states that the “negotiations shallbe conducted in accordance with x x x the principles of thesovereignty and territorial integrity of the Republic of thePhilippines.” (Emphasis supplied) Establishing an associativerelationship between the BJE and the Central Government is,for the reasons already discussed, a preparation forindependence, or worse, an implicit acknowledgment of anindependent status already prevailing.

Even apart from the above-mentioned Memorandum,however, the MOA-AD is defective because the suspensiveclause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel tonegotiate with the MILF is founded on E.O. No. 3, Section 5(c),which states that there shall be established Government PeaceNegotiating Panels for negotiations with different rebel groupsto be “appointed by the President as her official emissaries toconduct negotiations, dialogues, and face-to-face discussionswith rebel groups.” These negotiating panels are to report tothe President, through the PAPP on the conduct and progressof the negotiations.

It bears noting that the GRP Peace Panel, in exploring lastingsolutions to the Moro Problem through its negotiations withthe MILF, was not restricted by E.O. No. 3 only to those optionsavailable under the laws as they presently stand. One of thecomponents of a comprehensive peace process, which E.O. No.3 collectively refers to as the “Paths to Peace,” is the pursuit ofsocial, economic, and political reforms which may require newlegislation or even constitutional amendments. Section 4(a) ofE.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,167 states:

167 DEFINING THE APPROACH AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENT’S

COMPREHENSIVE PEACE EFFORTS, September 15, 1993.


SEC. 4. The Six Paths to Peace. – The components of thecomprehensive peace process comprise the processes knownas the “Paths to Peace.” These component processes areinterrelated and not mutually exclusive, and must thereforebe pursued simultaneously in a coordinated and integratedfashion. They shall include, but may not be limited to, thefollowing:

a. Pursuit of Social, Economic and Political Reforms. Thiscomponent involves the vigorous implementation ofvarious policies, reforms, programs and projects aimed ataddressing the root causes of internal armed conflicts andsocial unrest. This may require administrative action, newlegislation or even constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived asan attempt of respondents to address, pursuant to this provisionof E.O. No. 3, the root causes of the armed conflict in Mindanao.The E.O. authorized them to “think outside the box,” so to speak.Hence, they negotiated and were set on signing the MOA-ADthat included various social, economic, and political reformswhich cannot, however, all be accommodated within thepresent legal framework, and which thus would require newlegislation and constitutional amendments.

The inquiry on the legality of the “suspensive clause,”however, cannot stop here, because it must be asked

whether the President herself mayexercise the power delegated tothe GRP Peace Panel underExecutive Order No. 3, Section 4(a).

The President cannot delegate a power that she herself doesnot possess. May the President, in the course of peacenegotiations, agree to pursue reforms that would require newlegislation and constitutional amendments, or should thereforms be restricted only to those solutions which the presentlaws allow? The answer to this question requires a discussionof


the extent of the President’s powerto conduct peace negotiations.

That the authority of the President to conduct peacenegotiations with rebel groups is not explicitly mentioned inthe Constitution does not mean that she has no such authority.In Sanlakas v. Executive Secretary,168 in issue was the authorityof the President to declare a state of rebellion – an authoritywhich is not expressly provided for in the Constitution. TheCourt held thus:

In her ponencia in Marcos v. Manglapus, Justice Cortes put herthesis into jurisprudence. There, the Court, by a slim 8–7margin, upheld the President’s power to forbid the return ofher exiled predecessor. The rationale for the majority’s rulingrested on the President’s

x x x unstated residual powers which are implied from thegrant of executive power and which are necessary for herto comply with her duties under the Constitution. Thepowers of the President are not limited to what areexpressly enumerated in the article on the ExecutiveDepartment and in scattered provisions of the Constitution.This is so, notwithstanding the avowed intent of themembers of the Constitutional Commission of 1986to limit the powers of the President as a reaction tothe abuses under the regime of Mr. Marcos, for theresult was a limitation of specific powers of thePresident, particularly those relating to thecommander-in-chief clause, but not a diminution ofthe general grant of executive power.

Thus, the President’s authority to declare a state of rebellionsprings in the main from her powers as chief executive and, atthe same time, draws strength from her Commander-in-Chiefpowers. x x x (Emphasis and underscoring supplied)

Similarly, the President ’s power to conduct peacenegotiations is implicitly included in her powers as ChiefExecutive and Commander-in-Chief. As Chief Executive, thePresident has the general responsibility to promote public

168 466 Phil. 482, 519–520 (2004).


peace, and as Commander-in-Chief, she has the more specificduty to prevent and suppress rebellion and lawless violence.169

As the experience of nations which have similarly gonethrough internal armed conflict will show, however, peace israrely attained by simply pursuing a military solution.Oftentimes, changes as far-reaching as a fundamentalreconfiguration of the nation’s constitutional structure isrequired. The observations of Dr. K irsti Samuels areenlightening, to wit:

x x x [T]he fact remains that a successful political andgovernance transition must form the core of any post-conflictpeace-building mission. As we have observed in Liberia andHaiti over the last ten years, conflict cessation withoutmodification of the political environment, even where state-building is undertaken through technical electoral assistanceand institution- or capacity-building, is unlikely to succeed.On average, more than 50 percent of states emerging fromconflict return to conflict. Moreover, a substantial proportionof transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-makingprocess can play an important role in the political andgovernance transition. Constitution-making after conflict isan opportunity to create a common vision of the future of astate and a road map on how to get there. The constitution canbe partly a peace agreement and partly a framework settingup the rules by which the new democracy will operate.170

In the same vein, Professor Christine Bell, in her article onthe nature and legal status of peace agreements, observed thatthe typical way that peace agreements establish or confirmmechanisms for demilitarization and demobilization is by linkingthem to new constitutional structures addressing governance,elections, and legal and human rights institutions.171

169 CONSTITUTION, Article VII, Section 18.170 Kirsti Samuels, POST-CONFLICT PEACE-BUILDING AND CONSTITUTION-MAKING, 6

Chi. J. Int’l L. 663 (2006).171 Christine Bell, PEACE AGREEMENTS: THEIR NATURE AND LEGAL STATUS, 100 Am. J.

Int’l L. 373 (2006).


In the Philippine experience, the link between peaceagreements and constitution-making has been recognized byno less than the framers of the Constitution. Behind theprovisions of the Constitution on autonomous regions172 is theframers’ intention to implement a particular peace agreement,namely, the Tripoli Agreement of 1976 between the GRP andthe MNLF, signed by then Undersecretary of National DefenseCarmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I havesome more questions, I will reserve my right to ask them ifthey are not covered by the other speakers. I have only twoquestions.

I heard one of the Commissioners say that local autonomyalready exists in the Muslim region; it is working very well; ithas, in fact, diminished a great deal of the problems. So, myquestion is: since that already exists, why do we have to gointo something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo.Commissioner Yusup Abubakar is right that certain definitesteps have been taken to implement the provisions of theTripoli Agreement with respect to an autonomous region inMindanao. This is a good first step, but there is no questionthat this is merely a partial response to the Tripoli Agreementitself and to the fuller standard of regional autonomycontemplated in that agreement, and now by state policy.173

(Emphasis supplied)

The constitutional provisions on autonomy and the statutesenacted pursuant to them have, to the credit of their drafters,been partly successful. Nonetheless, the Filipino people arestill faced with the reality of an on-going conflict between theGovernment and the MILF. If the President is to be expected tofind means for bringing this conflict to an end and to achievelasting peace in Mindanao, then she must be given the leewayto explore, in the course of peace negotiations, solutions thatmay require changes to the Constitution for their172 CONSTITUTION, Article X, Sections 15–21.173 III RECORD, CONSTITUTIONAL COMMISSION, 180 (August 11, 1986).


implementation. Being uniquely vested with the power toconduct peace negotiations with rebel groups, the President isin a singular position to know the precise nature of theirgrievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implementthe solutions that she considers viable, but she may not beprevented from submitting them as recommendations toCongress, which could then, if it is minded, act upon thempursuant to the legal procedures for constitutional amendmentand revision. In particular, Congress would have the option,pursuant to Article XVII, Sections 1 and 3 of the Constitution, topropose the recommended amendments or revision to thepeople, call a constitutional convention, or submit to theelectorate the question of calling such a convention.

While the President does not possess constituent powers– as those powers may be exercised only by Congress, aConstitutional Convention, or the people through initiative andreferendum – she may submit proposals for constitutionalchange to Congress in a manner that does not involve thearrogation of constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of thenPresident Marcos’ act of directly submitting proposals forconstitutional amendments to a referendum, bypassing theinterim National Assembly which was the body vested by the1973 Constitution with the power to propose such amendments.President Marcos, it will be recalled, never convened the interimNational Assembly. The majority upheld the President’s act,holding that “the urges of absolute necessity” compelled thePresident as the agent of the people to act as he did, therebeing no interim National Assembly to propose constitutionalamendments. Against this ruling, Justices Teehankee and MuñozPalma vigorously dissented. The Court’s concern at present,however, is not with regard to the point on which it was thendivided in that controversial case, but on that which was notdisputed by either side.

174 165 Phil. 303 (1976).


Justice Teehankee’s dissent,175 in particular, bears noting.While he disagreed that the President may directly submitproposed constitutional amendments to a referendum, implicitin his opinion is a recognition that he would have upheld thePresident’s action along with the majority had the Presidentconvened the interim National Assembly and coursed hisproposals through it. Thus Justice Teehankee opined:

Since the Constitution provides for the organization of theessential departments of government, defines and delimitsthe powers of each and prescribes the manner of the exerciseof such powers, and the constituent power has not beengranted to but has been withheld from the President or PrimeMinister, it follows that the President’s questioned decreesproposing and submitting constitutional amendments directlyto the people (without the intervention of the interim NationalAssembly in whom the power is expressly vested) are devoidof constitutional and legal basis.176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferredthat the President – in the course of conducting peacenegotiations – may validly consider implementing even thosepolicies that require changes to the Constitution, but she maynot unilaterally implement them without the intervention ofCongress, or act in any way as if the assent of that body wereassumed as a certainty.

Since, under the present Constitution, the people also havethe power to directly propose amendments through initiativeand referendum, the President may also submit herrecommendations to the people, not as a formal proposal to bevoted on in a plebiscite similar to what President Marcos did inSanidad, but for their independent consideration of whetherthese recommendations merit being formally proposed throughinitiative.

These recommendations, however, may amount to nothingmore than the President’s suggestions to the people, for anyfurther involvement in the process of initiative by the ChiefExecutive may vitiate its character as a genuine “people’s175 Id. at 412.176 Id. at 413.


initiative.” The only initiative recognized by the Constitution isthat which truly proceeds from the people. As the Court statedin Lambino v. COMELEC:177

The Lambino Group claims that their initiative is the ‘people’svoice.’ However, the Lambino Group unabashedly states in ULAPResolution No. 2006-02, in the verification of their petitionwith the COMELEC, that ‘ULAP maintains its unqualified supportto the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.’ The Lambino Group thusadmits that their ‘people’s’ initiative is an ‘unqualified supportto the agenda’ of the incumbent President to change theConstitution. This forewarns the Court to be wary ofincantations of ‘people’s voice’ or ‘sovereign will’ in the presentinitiative.

It will be observed that the President has authority, as statedin her oath of office,178 only to preserve and defend theConstitution. Such presidential power does not, however,extend to allowing her to change the Constitution, but simplyto recommend proposed amendments or revision. As long asshe limits herself to recommending these changes and submitsto the proper procedure for constitutional amendments andrevision, her mere recommendation need not be construed asan unconstitutional act.

The foregoing discussion focused on the President’sauthority to propose constitutional amendments, since herauthority to propose new legislation is not in controversy. Ithas been an accepted practice for Presidents in this jurisdictionto propose new legislation. One of the more prominentinstances the practice is usually done is in the yearly State ofthe Nation Address of the President to Congress. Moreover,the annual general appropriations bill has always been basedon the budget prepared by the President, which – for all intentsand purposes – is a proposal for new legislation coming fromthe President.179

177 G.R. No. 174153, October 25, 2006, 505 SCRA 160, 264–265.178 CONSTITUTION, Article VII, Section 5.179 Article VI, Section 25(1) of the Constitution states as follows: “The

Congress may not increase the appropriations recommended by


The “suspensive clause” in theMOA-AD viewed in light of theabove-discussed standards

Given the limited nature of the President’s authority to proposeconstitutional amendments, she cannot guarantee to any thirdparty that the required amendments will eventually be put inplace, nor even be submitted to a plebiscite. The most she coulddo is submit these proposals as recommendations either toCongress or the people, in whom constituent powers arevested.

Paragraph 7 on Governance of the MOA-AD states, however,that all provisions thereof which cannot be reconciled with thepresent Constitution and laws “shall come into force uponsigning of a Comprehensive Compact and upon effecting thenecessary changes to the legal framework.” This stipulation doesnot bear the marks of a suspensive condition – defined in civillaw as a future and uncertain event – but of a term. It is not aquestion of whether the necessary changes to the legalframework will be effected, but when. That there is nouncertainty being contemplated is plain from what follows, forthe paragraph goes on to state that the contemplated changesshall be “with due regard to non derogation of prior agreementsand within the stipulated timeframe to be contained in theComprehensive Compact.”

Pursuant to this stipulation, therefore, it is mandatory forthe GRP to effect the changes to the legal frameworkcontemplated in the MOA-AD – which changes would includeconstitutional amendments, as discussed earlier. It bears notingthat,

By the time these changes are put inplace, the MOA-AD itself would becounted among the “prior agreements”from which there could be noderogation.

the President for the operation of the Government as specified inthe budget. The form, content, and manner of preparation of thebudget shall be prescribed by law.”


What remains for discussion in the Comprehensive Compactwould merely be the implementing details for these “consensuspoints” and, notably, the deadline for effecting thecontemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE isinconsistent with the limits of the President’s authority topropose constitutional amendments, it being a virtual guaranteethat the Constitution and the laws of the Republic of thePhilippines will certainly be adjusted to conform to all the“consensus points” found in the MOA-AD. Hence, it must bestruck down as unconstitutional.

A comparison between the “suspensive clause” of the MOA-AD with a similar provision appearing in the 1996 final peaceagreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulatedthat it would be implemented in two phases. Phase I covered athree-year transitional period involving the putting up of newadministrative structures through Executive Order, such as theSpecial Zone of Peace and Development (SZOPAD) and theSouthern Philippines Council for Peace and Development(SPCPD), while Phase II covered the establishment of the newregional autonomous government through amendment orrepeal of RA No. 6734, which was then the Organic Act of theARMM.

The stipulations on Phase II consisted of specificagreements on the structure of the expanded autonomousregion envisioned by the parties. To that extent, they are similarto the provisions of the MOA-AD. There is, however, a crucialdifference between the two agreements. While the MOA-ADvirtually guarantees that the “necessary changes to the legalframework” will be put in place, the GRP-MNLF final peaceagreement states thus: “Accordingly, these provisions [on PhaseII] shall be recommended by the GRP to Congress forincorporation in the amendatory or repealing law.”

Concerns have been raised that the MOA-AD would havegiven rise to a binding international law obligation on the partof the Philippines to change its Constitution in conformitythereto, on the ground that it may be considered either as a


binding agreement under international law, or a unilateraldeclaration of the Philippine government to the internationalcommunity that it would grant to the Bangsamoro people allthe concessions therein stated. Neither ground finds sufficientsupport in international law, however.

The MOA-AD, as earlier mentioned in the overview thereof,would have included foreign dignitaries as signatories. Inaddition, representatives of other nations were invited towitness its signing in Kuala Lumpur. These circumstances readilylead one to surmise that the MOA-AD would have had the statusof a binding international agreement had it been signed. Anexamination of the prevailing principles in international law,however, leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lomé AccordAmnesty180 (the Lomé Accord case) of the Special Court of SierraLeone is enlightening. The Lomé Accord was a peace agreementsigned on July 7, 1999 between the Government of Sierra Leoneand the Revolutionary United Front (RUF), a rebel group withwhich the Sierra Leone Government had been in armed conflictfor around eight years at the time of signing. There were non-contracting signatories to the agreement, among which werethe Government of the Togolese Republic, the EconomicCommunity of West African States, and the UN.

On January 16, 2002, after a successful negotiation betweenthe UN Secretary-General and the Sierra Leone Government,another agreement was entered into by the UN and thatGovernment whereby the Special Court of Sierra Leone wasestablished. The sole purpose of the Special Court, aninternational court, was to try persons who bore the greatestresponsibility for serious violations of internationalhumanitarian law and Sierra Leonean law committed in theterritory of Sierra Leone since November 30, 1996.

Among the stipulations of the Lomé Accord was a provisionfor the full pardon of the members of the RUF with respect toanything done by them in pursuit of their objectives as membersof that organization since the conflict began.180 Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-AR72(E),

SCSL-2004-16-AR72(E), March 13, 2004].


In the Lomé Accord case, the Defence argued that the Accordcreated an internationally binding obligation not to prosecutethe beneficiaries of the amnesty provided therein, citing, amongother things, the participation of foreign dignitaries andinternational organizations in the finalization of that agreement.The Special Court, however, rejected this argument, ruling thatthe Lomé Accord is not a treaty and that it can only createbinding obligations and rights between the parties in municipallaw, not in international law. Hence, the Special Court held, it isineffective in depriving an international court like it ofjurisdiction.

37. In regard to the nature of a negotiated settlement of aninternal armed conflict it is easy to assume and to arguewith some degree of plausibility, as Defence counsel forthe defendants seem to have done, that the mere factthat in addition to the parties to the conflict, the documentformalizing the settlement is signed by foreign heads ofstate or their representatives and representatives ofinternational organizations, means the agreement of theparties is internationalized so as to create obligations ininternational law.

x x x x

40. Almost every conflict resolution will involve the partiesto the conflict and the mediator or facilitator of thesettlement, or persons or bodies under whose auspicesthe settlement took place but who are not at all parties tothe conflict, are not contracting parties and who do notclaim any obligation from the contracting parties or incurany obligation from the settlement.

41. In this case, the parties to the conflict are the lawfulauthority of the State and the RUF which has no status ofstatehood and is to all intents and purposes a faction withinthe state. The non-contracting signatories of the LoméAgreement were moral guarantors of the principle that,in the terms of Article XXXIV of the Agreement, “thispeace agreement is implemented with integrity and ingood faith by both parties.” The moral guarantors assumedno legal obligation. It is recalled that the UN by its


representative appended, presumably for avoidance ofdoubt, an understanding of the extent of the agreement tobe implemented as not including certain internationalcrimes.

42. An international agreement in the nature of a treaty mustcreate rights and obligations regulated by internationallaw so that a breach of its terms will be a breachdetermined under international law which will alsoprovide principle means of enforcement. The LoméAgreement created neither rights nor obligations capableof being regulated by international law. An agreementsuch as the Lomé Agreement which brings to an end aninternal armed conflict no doubt creates a factual situationof restoration of peace that the international communityacting through the Security Council may take note of. That,however, will not convert it to an international agreementwhich creates an obligation enforceable in international,as distinguished from municipal, law. A breach of the termsof such a peace agreement resulting in resumption ofinternal armed conflict or creating a threat to peace inthe determination of the Security Council may indicate areversal of the factual situation of peace to be visitedwith possible legal consequences arising from the newsituation of conflict created. Such consequences such asaction by the Security Council pursuant to Chapter VIIarise from the situation and not from the agreement, norfrom the obligation imposed by it. Such action cannot beregarded as a remedy for the breach. A peace agreementwhich settles an internal armed conflict cannot be ascribedthe same status as one which settles an internationalarmed conflict which, essentially, must be between twoor more warring States. The Lomé Agreement cannot becharacterised as an international instrument. x x x(Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed byrepresentatives of States and international organizations notparties to the Agreement would not have sufficed to vest in it abinding character under international law.


In another vein, concern has been raised that the MOA-ADwould amount to a unilateral declaration of the Philippine State,binding under international law, that it would comply with allthe stipulations stated therein, with the result that it wouldhave to amend its Constitution accordingly regardless of thetrue will of the people. Cited as authority for this view isAustralia v. France,181 also known as the Nuclear Tests Case,decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before theICJ the legality of France’s nuclear tests in the South Pacific.France refused to appear in the case, but public statementsfrom its President, and similar statements from other Frenchofficials including its Minister of Defence, that its 1974 series ofatmospheric tests would be its last, persuaded the ICJ to dismissthe case.182 Those statements, the ICJ held, amounted to a legalundertaking addressed to the international community, whichrequired no acceptance from other States for it to becomeeffective.

Essential to the ICJ ruling is its finding that the Frenchgovernment intended to be bound to the internationalcommunity in issuing its public statements, viz:

43. It is well recognized that declarations made by way ofunilateral acts, concerning legal or factual situations,may have the effect of creating legal obligations.Declarations of this kind may be, and often are, veryspecific. When it is the intention of the State making thedeclaration that it should become bound according to itsterms, that intention confers on the declaration thecharacter of a legal undertaking, the State beingthenceforth legally required to follow a course of conductconsistent with the declaration. An undertaking of thiskind, if given publicly, and with an intent to be bound,even though not made within the context of internationalnegotiations, is binding. In these circumstances, nothingin the nature of a quid pro quo nor any subsequentacceptance of the declaration, nor even any reply or

181 1974 I.C.J. 253, 1974 WL 3 (I.C.J.).182 M. Janis and J. Noyes, INTERNATIONAL LAW, CASES AND COMMENTARY, 3rd ed.

280 (2006).


reaction from other States, is required for the declarationto take effect, since such a requirement would beinconsistent with the strictly unilateral nature of thejuridical act by which the pronouncement by the Statewas made.

44. Of course, not all unilateral acts imply obligation; but aState may choose to take up a certain position in relationto a particular matter with the intention of being bound –the intention is to be ascertained by interpretation of theact. When States make statements by which their freedomof action is to be limited, a restrictive interpretation iscalled for.

x x x x

51. In announcing that the 1974 series of atmospheric testswould be the last, the French Government conveyed tothe world at large, including the Applicant, its intentioneffectively to terminate these tests. It was bound to assumethat other States might take note of these statementsand rely on their being effective. The validity of thesestatements and their legal consequences must beconsidered within the general framework of the securityof international intercourse, and the confidence and trustwhich are so essential in the relations among States. It isfrom the actual substance of these statements, and fromthe circumstances attending their making, that the legalimplications of the unilateral act must be deduced. Theobjects of these statements are clear and they wereaddressed to the international community as a whole,and the Court holds that they constitute an undertakingpossessing legal effect. The Court considers *270 that thePresident of the Republic, in deciding upon the effectivecessation of atmospheric tests, gave an undertaking tothe international community to which his words wereaddressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, publicstatements of a state representative may be construed as aunilateral declaration only when the following conditions arepresent: the statements were clearly addressed to the


international community, the state intended to be bound tothat community by its statements, and that not to give legaleffect to those statements would be detrimental to the securityof international intercourse. Plainly, unilateral declarationsarise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case rulingwas recognized in a later case decided by the ICJ entitled BurkinaFaso v. Mali,183 also known as the Case Concerning the FrontierDispute. The public declaration subject of that case was astatement made by the President of Mali, in an interview by aforeign press agency, that Mali would abide by the decision tobe issued by a commission of the Organization of African Unityon a frontier dispute then pending between Mali and BurkinaFaso.

Unlike in the Nuclear Tests Case, the ICJ held that thestatement of Mali’s President was not a unilateral act with legalimplications. It clarified that its ruling in the Nuclear Tests caserested on the peculiar circumstances surrounding the Frenchdeclaration subject thereof, to wit:

40. In order to assess the intentions of the author of aunilateral act, account must be taken of all the factualcircumstances in which the act occurred. For example, inthe Nuclear Tests cases, the Court took the view that sincethe applicant States were not the only ones concerned atthe possible continuance of atmospheric testing by theFrench Government, that Government’s unilateraldeclarations had ‘conveyed to the world at large, includingthe Applicant, its intention effectively to terminate thesetests’ (I.C.J. Reports 1974, p. 269, paragraph 51; p. 474,paragraph 53). In the particular circumstances of thosecases, the French Government could not express anintention to be bound otherwise than by unilateraldeclarations. It is difficult to see how it could haveaccepted the terms of a negotiated solution with each ofthe applicants without thereby jeopardizing its contentionthat its conduct was lawful. The circumstances of thepresent case are radically different. Here, there was

183 1986 I.C.J. 554, 1986 WL 15621 (I.C.J.), December 22, 1986.


nothing to hinder the Parties from manifesting anintention to accept the binding character of the conclusionsof the Organization of African Unity Mediation Commissionby the normal method: a formal agreement on the basisof reciprocity. Since no agreement of this kind wasconcluded between the Parties, the Chamber finds thatthere are no grounds to interpret the declaration made byMali’s head of State on April 11, 1975 as a unilateral actwith legal implications in regard to the present case.(Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, itwould not have amounted to a unilateral declaration on thepart of the Philippine State to the international community.The Philippine panel did not draft the same with the clearintention of being bound thereby to the internationalcommunity as a whole or to any State, but only to the MILF.While there were States and international organizationsinvolved, one way or another, in the negotiation and projectedsigning of the MOA-AD, they participated merely as witnessesor, in the case of Malaysia, as facilitator. As held in the LoméAccord case, the mere fact that in addition to the parties to theconflict, the peace settlement is signed by representatives ofstates and international organizations does not mean that theagreement is internationalized so as to create obligations ininternational law.

Since the commitments in the MOA-AD were not addressedto States, not to give legal effect to such commitments wouldnot be detrimental to the security of international intercourse– to the trust and confidence essential in the relations amongStates.

In one important respect, the circumstances surroundingthe MOA-AD are closer to that of Burkina Faso wherein, asalready discussed, the Mali President’s statement was not heldto be a binding unilateral declaration by the ICJ. As in that case,there was also nothing to hinder the Philippine panel, had itreally been its intention to be bound to other States, to manifestthat intention by formal agreement. Here, that formalagreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the


international community, not just the MILF, and by an equallyclear indication that the signatures of the participating states-representatives would constitute an acceptance of thatcommitment. Entering into such a formal agreement would nothave resulted in a loss of face for the Philippine governmentbefore the international community, which was one of thedifficulties that prevented the French Government fromentering into a formal agreement with other countries. Thatthe Philippine panel did not enter into such a formal agreementsuggests that it had no intention to be bound to theinternational community. On that ground, the MOA-AD maynot be considered a unilateral declaration under internationallaw.

The MOA-AD not being a document that can bind thePhilippines under international law notwithstanding,respondents’ almost consummated act of guaranteeingamendments to the legal framework is, by itself, sufficient toconstitute grave abuse of discretion. The grave abuse lies notin the fact that they considered, as a solution to the MoroProblem, the creation of a state within a state, but in their brazenwillingness to guarantee that Congress and the sovereignFilipino people would give their imprimatur to their solution.Upholding such an act would amount to authorizing a usurpationof the constituent powers vested only in Congress, aConstitutional Convention, or the people themselves throughthe process of initiative, for the only way that the Executive canensure the outcome of the amendment process is through anundue influence or interference with that process.

The sovereign people may, if it so desired, go to the extentof giving up a portion of its own territory to the Moros for thesake of peace, for it can change the Constitution in any it wants,so long as the change is not inconsistent with what, ininternational law, is known as Jus Cogens.184 Respondents,however, may not preempt it in that decision.

184 Planas v. COMELEC, 151 Phil. 217, 249 (1973).


SUMMARY

The petitions are ripe for adjudication. The failure ofrespondents to consult the local government units orcommunities affected constitutes a departure by respondentsfrom their mandate under E.O. No. 3. Moreover, respondentsexceeded their authority by the mere act of guaranteeingamendments to the Constitution. Any alleged violation of theConstitution by any branch of government is a proper matterfor judicial review.

As the petitions involve constitutional issues which are ofparamount public interest or of transcendental importance, theCourt grants the petitioners, petitioners-in-intervention andintervening respondents the requisite locus standi in keepingwith the liberal stance adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRPPeace Panel mooted the present petitions, the Court finds thatthe present petitions provide an exception to the “moot andacademic” principle in view of (a) the grave violation of theConstitution involved; (b) the exceptional character of thesituation and paramount public interest; (c) the need toformulate controlling principles to guide the bench, the bar,and the public; and (d) the fact that the case is capable ofrepetition yet evading review.

The MOA-AD is a significant part of a series of agreementsnecessary to carry out the GRP-MILF Tripoli Agreement on Peacesigned by the government and the MILF back in June 2001.Hence, the present MOA-AD can be renegotiated or anotherone drawn up that could contain similar or significantlydissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamushave been rendered moot in view of the respondents’ action inproviding the Court and the petitioners with the official copy ofthe final draft of the MOA-AD and its annexes.

The people’s right to information on matters of publicconcern under Section 7, Article III of the Constitution is insplendid symmetry with the state policy of full public disclosure


of all its transactions involving public interest under Section 28,Article II of the Constitution. The right to information guaranteesthe right of the people to demand information, while Section28 recognizes the duty of officialdom to give information evenif nobody demands. The complete and effective exercise ofthe right to information necessitates that its complementaryprovision on public disclosure derive the same self-executorynature, subject only to reasonable safeguards or limitations asmay be provided by law.

The contents of the MOA-AD is a matter of paramount publicconcern involving public interest in the highest order. Indeclaring that the right to information contemplates steps andnegotiations leading to the consummation of the contract,jurisprudence finds no distinction as to the executory nature orcommercial character of the agreement.

An essential element of these twin freedoms is to keep acontinuing dialogue or process of communication between thegovernment and the people. Corollary to these twin rights isthe design for feedback mechanisms. The right to publicconsultation was envisioned to be a species of these publicrights.

At least three pertinent laws animate these constitutionalimperatives and justify the exercise of the people’s right to beconsulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics forcontinuing consultations on both national and local levels andfor a principal forum for consensus-building. In fact, it is theduty of the Presidential Adviser on the Peace Process to conductregular dialogues to seek relevant information, comments,advice, and recommendations from peace partners andconcerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Codeof 1991 requires all national offices to conduct consultationsbefore any project or program critical to the environment andhuman ecology including those that may call for the eviction ofa particular group of people residing in such locality, isimplemented therein. The MOA-AD is one peculiar programthat unequivocally and unilaterally vests ownership of a vast


territory to the Bangsamoro people, which could pervasivelyand drastically result to the diaspora or displacement of a greatnumber of inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous PeoplesRights Act of 1997 provides for clear-cut procedure for therecognition and delineation of ancestral domain, which entails,among other things, the observance of the free and priorinformed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant theExecutive Department or any government agency the power todelineate and recognize an ancestral domain claim by mereagreement or compromise.

The invocation of the doctrine of executive privilege as adefense to the general right to information or the specific rightto consultation is untenable. The various explicit legalprovisions fly in the face of executive secrecy. In any event,respondents effectively waived such defense after itunconditionally disclosed the official copies of the final draftof the MOA-AD, for judicial compliance and public scrutiny.

IN SUM, the Presidential Adviser on the Peace Processcommitted grave abuse of discretion when he failed to carryout the pertinent consultation process, as mandated by E.O.No. 3, Republic Act No. 7160, and Republic Act No. 8371. Thefurtive process by which the MOA-AD was designed and craftedruns contrary to and in excess of the legal authority, and amountsto a whimsical, capricious, oppressive, arbitrary and despoticexercise thereof. It illustrates a gross evasion of positive dutyand a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the presentConstitution and laws. Not only its specific provisions but thevery concept underlying them, namely, the associativerelationship envisioned between the GRP and the BJE, areunconstitutional, for the concept presupposes that theassociated entity is a state and implies that the same is on itsway to independence.

While there is a clause in the MOA-AD stating that theprovisions thereof inconsistent with the present legalframework will not be effective until that framework is


amended, the same does not cure its defect. The inclusion ofprovisions in the MOA-AD establishing an associativerelationship between the BJE and the Central Government is,itself, a violation of the Memorandum of Instructions From ThePresident dated March 1, 2001, addressed to the governmentpeace panel. Moreover, as the clause is worded, it virtuallyguarantees that the necessary amendments to the Constitutionand the laws will eventually be put in place. Neither the GRPPeace Panel nor the President herself is authorized to makesuch a guarantee. Upholding such an act would amount toauthorizing a usurpation of the constituent powers vested onlyin Congress, a Constitutional Convention, or the peoplethemselves through the process of initiative, for the only waythat the Executive can ensure the outcome of the amendmentprocess is through an undue influence or interference with thatprocess.

While the MOA-AD would not amount to an internationalagreement or unilateral declaration binding on the Philippinesunder international law, respondents’ act of guaranteeingamendments is, by itself, already a constitutional violation thatrenders the MOA-AD fatally defective.

WHEREFORE, respondents’ motion to dismiss is DENIED. Themain and intervening petitions are GIVEN DUE COURSE andhereby GRANTED.

The Memorandum of Agreement on the Ancestral DomainAspect of the GRP-MILF Tripoli Agreement on Peace of 2001 isdeclared CONTRARY TO LAW AND THE CONSTITUTION.

SO ORDERED.

Puno (C.J.), Please see Separate Concurring Opinion.

Quisumbing, J., concur.

Ynares-Santiago, J., See Separate Concurring Opinion andconcur with Separate Opinion of C.J. Puno.

Carpio, J., See Concurring Opinion.

Austria-Martinez, J., I also concur with CJ’s Separate Opinion.

Corona, J. I share the Dissent of Mr. Justice Tinga.


Azcuna, J., I concur in a Separate Opinion.

Tinga, J., I dissent from the result. See Separate Opinion.

Chico-Nazario, J., Please see Dissenting Opinion.

Velasco, Jr. J., Please see Dissenting Opinion.

Nachura, J., Please see Dissenting Opinion.

Reyes, J., I certify that J. Reyes filed a Separate Opinionconcurring with the majority. (Puno, C.J.)

Leonardo-De Castro, J., Please see Concurring and DissentingOpinion.

Brion, J., Please see Dissenting Opinion.

155PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION

SEPARATE CONCURRING OPINION

Puno, C.J.:

It is the duty of the government to seek a just, comprehensiveand enduring peace with any rebel group but the search forpeace must always be in accord with the Constitution. Any searchfor peace that undercuts the Constitution must be struck down.Peace in breach of the Constitution is worse than worthless.

I. HISTORICAL ROOTS

A historical perspective of our Muslim problem is helpful.

From time immemorial, an enduring peace with our Muslimbrothers and sisters in Mindanao has eluded our grasp. OurMuslim problem exploded in March of 1968 when Muslimtrainees were massacred by army officers at Corregidor. About180 Muslim trainees had been recruited in the previous year asa part of a covert force named Jabidah,1 allegedly formed towrest away Sabah from Malaysia. The trainees were massacredwhen they reportedly protested their unbearable training anddemanded the return to their home.2 The Jabidah Massacrefomented the formation of Muslim groups clamoring for aseparate Islamic state. One of these groups was the MuslimIndependence Movement (MIM), founded by the thenGovernor of Cotabato, Datu Udtog Matalam.3 Another was theNurul Islam, led by Hashim Salamat.1 The formation of the commando unit was supposedly for a

destabilization plan by the Marcos government aimed at Sabah.The young Muslim recruits were to be mobilized for operationsagainst Sabah and subsequently claim it from Malaysia.

2 T.J.S. George, Revolt in Mindanao: The Rise of Islam in PhilippinePolitics (1980) and Cesar Majul, The Contemporary MuslimMovement in the Philippines (1985), cited in Thomas M. McKenna,Muslim Rulers and Rebels, Everyday Politics and Armed Separatismin Southern Philippines, p. 141 (1998).

3 Thomas M. McKenna, Muslim Rulers and Rebels, Everyday Politicsand Armed Separatism in Southern Philippines, p. 144 (1998).


On September 21, 1972 Martial Law was declared byPresident Ferdinand E. Marcos. Among the reasons cited tojustify martial law were the armed conflict between Muslimsand Christians and the Muslim secessionist movement in theSouthern Philippines.4 The imposition of martial law drove someof the Muslim secessionist movements to the underground.One of them was the Moro National Liberation Front (MNLF)headed by Nur Misuari. In 1974, the MNLF shot to prominence,when the Organization of Islamic Conference (OIC) officiallygave it recognition. During the 5th ICFM, they strongly urged“the Philippines Government to find a political and peacefulsolution through negotiation with Muslim leaders, particularlywith representatives of the MNLF in order to arrive at a justsolution to the plight of the Filipino Muslims within theframework of national sovereignty and territorial integrity ofthe Philippines”; and recognized “the problem as an internalproblem with the Philippine Government to ensure the safetyof the Filipino Muslims and the preservation of their libertiesin accordance with the Universal Declaration of Human Rights.”5

In December 1976, the Philippine government and the MNLFunder the auspices of the OIC started their peace negotiationin Tripoli, Libya. It bore its first fruit when on January 20, 1977,the parties signed the Tripoli Agreement in Zamboanga City inthe presence of the OIC Representative.

President Marcos immediately implemented the TripoliAgreement. He issued Presidential Proclamation No. 1628,“Declaring Autonomy in Southern Philippines.” A plebiscite wasconducted in the provinces covered under the TripoliAgreement to determine the will of the people thereat. Further,the legislature enacted Batasang Pambansa Blg. 20, “Providingfor the Organization of Sangguniang Pampook (Regional

4 Ferdinand Marcos, “Proclamation of Martial Law,” Philippine SundayExpress 1(141):5–8, cited in Thomas McKenna, supra, at 156.

5 Quoted in “Implementation of the Tripoli Agreement” jointlypublished by the Department of Foreign Affairs and the Ministry ofMuslim Affairs, Manila, November 27, 1984, p. 36, cited in AbrahamIribani, Give Peace a Chance, The Story of the GRP-MNLF peaceTalks, p. 15 (2006), at p. 36.


Legislative Assembly) in Each of Regions IX and XII.” PresidentMarcos then ordered the creation of Autonomous Region IXand XII.

In the meanwhile, the MNLF continued enhancing itsinternational status. It was accorded the status of an observerin Tripoli, Libya during the 8th ICFM. In the 15th ICFM at Sana’a,Yemen, in 1984, the MNLF’s status was further elevated from amere ‘legitimate representative’ to ‘sole legitimaterepresentative’ of the Bangsamoro people.6

In April 1977, the peace talks between the Government ofthe Republic of the Philippines (GRP) and MNLF Talks collapsed.Schism split the MNLF leadership. The irreconcilable differencesbetween Nur Misuari and Hashim Salamat led to the formationof the Moro Islamic Liberation Front (MILF), headed by HashimSalamat. Thus, the Maguindanao-led MILF, parted ways withthe Tausug-led MNLF.

In 1986, the People Power Revolution catapulted CorazonC. Aquino to the Presidency. Forthwith, she ordered the peacetalks with the MNLF to resume. The 1987 Constitution wasratified by the people. It provided for the creation of theAutonomous Region of Muslim Mindanao through an act ofCongress. But again the talks with the MNLF floundered in May1987.7 Be that as it may, it was during President Aquino’sgovernance that a culture of peace negotiations with therebellious MNLF and MILF was cultivated.8 Thus, theAutonomous Region of Muslim Mindanao (ARMM) was createdthrough Republic Act No. 6734. The law took effect on August 1,1989.

6 From MNLF files, Nur Misuari, Chairperson of the MNLF, Addressdelivered before the Plenary Session of the 19th ICFM, held in Cairo,Egypt, July 31 to August 5, 1990, “The Tragedy of the Peace Processand What the 19th ICFM Can Do to Help,” cited in Abraham Iribani,supra note 5, at p. 39.

7 Abraham Iribani, supra note 5, at p. 43.8 Marites Danguilan Vitug and Glenda M. Gloria, Under the Crescent

Moon: Rebellion in Mindanao, p. 141 (2000).


Then came the presidency of President Fidel V. Ramos. Heissued on September 15, 1993, Executive Order No. 125 (E.O.125) which provided for a comprehensive, integrated andholistic peace process with the Muslim rebels. E.O. 125 createdthe Office of the Presidential Adviser on the Peace Process togive momentum to the peace talks with the MNLF.

In 1996, as the GRP-MNLF peace negotiations weresuccessfully winding down, the government prepared to dealwith the MILF problem. Formal peace talks started on Januaryof 1997, towards the end of the Ramos administration. TheBuldon Ceasefire Agreement was signed in July 19979 but timeran out for the negotiations to be completed.

President Joseph Estrada continued the peace talks withthe MILF. The talks, however, were limited to cessation ofhostilities and did not gain any headway. President Estrada gaveboth sides until December 1999 to finish the peace process.10

They did not meet the deadline. The year 2000 saw the escalationof acts of violence and the threats to the lives and security ofcivilians in Southern Mindanao. President Estrada then declaredan “all-out war” against the MILF.11 He bowed out of office withthe “war” unfinished.

Thereafter, President Gloria Macapagal Arroyo assumedoffice. Peace negotiations with the MILF were immediately setfor resumption. Executive Order No. 3, was issued “DefiningPolicy and Administrative Structure: For Government’sComprehensive Peace Efforts.” On March 24, 2001, a GeneralFramework for the Resumption of Peace Talks between the GRPand the MILF was signed. Republic Act No. 905412 was also9 Id. at 146.10 Id. at 161.11 Memorandum of the Respondent Government of the Republic of

the Philippines Peace Panel on the Ancestral Domain, September26, 2008, p. 10.

12 Republic Act No. 9054, An Act to Strengthen and Expand the OrganicAct for the Autonomous Region in Muslim Mindanao, amendingfor the purpose Republic Act No. 6734, entitled ‘An Act Providingfor the Autonomous Region in Muslim Mindanao,’ as amended(2001).


enacted on March 31, 2001 and took effect on August 14, 2001 tostrengthen and expand the Autonomous Region of MuslimMindanao. Through the Organic Act of 2001, six municipalitiesin Lanao del Norte voted for inclusion in the ARMM.

On June 22, 2001, the ancestral domain aspect of the GRP-MILF Tripoli Agreement was signed in Libya. Several rounds ofexploratory talks with the MILF followed. Unfortunately, on April2, 2003, Davao was twice bombed. Again, the peace talks werecancelled and fighting with the MILF resumed. On July 19, 2003the GRP and the MILF agreed on “mutual cessation of hostilities”and the parties returned to the bargaining table. The partiesdiscussed the problem of ancestral domain, divided into fourstrands: concept, territory, resources, and governance.

On February 7, 2006, the 10th round of Exploratory Talksbetween the GRP and the MILF ended. The parties issued ajoint statement of the consensus points of the Ancestral Domainaspect of GRP-MILF Tripoli Agreement on Peace of June 22, 2001.The Joint Statement provides that:

Among the consensus points reached were:

• Joint determination of the scope of the Bangsamorohomeland based on the technical maps and datasubmitted by both sides;

• Measures to address the legitimate grievances of theBangsamoro people arising from the unjust dispossessionand/or marginalization;

• Bangsamoro people’s right to utilize and develop theirancestral domain and ancestral lands;

• Economic cooperation arrangements for the benefit of theentire Bangsamoro people.

On July 27, 2008, a Joint Statement on the Memorandum ofAgreement on Ancestral Domain (MOA-AD) was signed byChairperson Rodolfo C. Garcia on behalf of the GRP Peace Panel,and Mohagher Iqbal on behalf of the MILF Panel. In the JointStatement, it was declared that the final draft of the MOA-ADhas already been initialed. It was announced that “both sidesreached a consensus to initial the final draft pending its official


signing by the Chairmen of the two peace panels in early August2008, in Putrajaya, Malaysia.”13

The Joint Statement triggered the filing of the petitions atbar. These Petitions, sought among others, to restrain the signingof the MOA-AD. On August 4, 2008, a day before the intendedsigning of the initialed MOA-AD, this Court issued a TemporaryRestraining Order stopping the signing of the MOA-AD. Severalpetitions-in-intervention were also filed praying for the samerelief. On August 8, 2008 and September 1, 2008, the respondentsthrough the Solicitor General, submitted official copies of theinitialed MOA-AD to the Court and furnished the petitionersand petitioners-in-intervention with copies of the same.

All the petitions were heard by the Court in three separatedays of oral arguments. In the course of the arguments, theSolicitor General informed the Court that the MOA-AD will notbe signed “in its present form or any other form.”14 Thereafter,the government Peace Panel was dismantled by the President.

II. PETITIONS SHOULD BE DECIDED ON THE MERITS

The first threshold issue is whether this Court should exerciseits power of judicial review and decide the petitions at bar onthe merits.

I respectfully submit that the Court should not avoid itsconstitutional duty to decide the petitions at bar on their meritin view of their transcendental importance. The subject ofreview in the petitions at bar is the conduct of the peace processwith the MILF which culminated in the MOA-AD. Theconstitutionality of the conduct of the entire peace processand not just the MOA-AD should go under the scalpel of judicialscrutiny. The review should not be limited to the initialed MOA-AD for it is merely the product of a constitutionally flawedprocess of negotiations with the MILF.

13 GRP-MILF Joint Statement on the Memorandum of Agreement onAncestral Domain, July 27, 2008.

14 Memorandum of the Solicitor General for the Respondents,September 26, 2008, p. 7.


Let us revisit the steps that led to the contested andcontroversial MOA-AD. Peace negotiations with the MILFcommenced with the execution of ceasefire agreements. Thewatershed event, however, occurred in 2001, with the issuanceof Executive Order No. 315 entitled “Defining Policy andAdministrative Structure for Government’s ComprehensivePeace Efforts.” Government Peace Negotiating Panels wereimmediately constituted to negotiate peace with rebel groups,which included the MILF. Significantly, Executive Order No. 3provides that in the pursuit of social, economic and politicalreforms, administrative action, new legislation or evenconstitutional amendments may be required.16 Section 4 ofExecutive Order No. 3 states, viz:

SEC. 4. The Six Paths to Peace. – The components of thecomprehensive peace process comprise the processes knownas the “Paths to Peace.” These component processes areinterrelated and not mutually exclusive, and must thereforebe pursued simultaneously in a coordinated and integratedfashion. They shall include, but may not be limited to, thefollowing:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS.This component involves the vigorous implementation ofvarious policies, reforms, programs and projects aimedat addressing the root causes of internal armed conflictsand social unrest. This may require administrative action,new legislation or even constitutional amendments.

x x x x

c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENTREBEL GROUPS. This component involves the conduct offace-to-face negotiations to reach peaceful settlement withthe different rebel groups. It also involves the effectiveimplementation of peace agreements. (Emphasis supplied)

15 February 28, 2001.16 EXECUTIVE ORDER No. 3, (2001), Section 4(a).


Executive Order No. 3, was later amended by E.O. No. 555,17

and was followed by the Tripoli Peace Agreement of 2001. TheTripoli Peace Agreement of 2001 became the basis for severalrounds of exploratory talks between the GRP Peace Panel andthe MILF. These exploratory talks resulted in the signing of theJoint Statements of the GRP and MILF peace panels to affirmcommitments that implement the Tripoli Agreement of 2001,including the ancestral domain aspect. The issuance of the JointStatements culminated in the initialing of the MOA-AD.18

It is crystal clear that the initialing of the MOA-AD is but theevidence of the government peace negotiating panel’s assentto the terms contained therein. If the MOA-AD isconstitutionally infirm, it is because the conduct of the peaceprocess itself is flawed. It is the constitutional duty of the Courtto determine whether there has been a grave abuse ofdiscretion amounting to lack or excess of jurisdiction on thepart of the government peace negotiating panel in the conductof the peace negotiations with the MILF. The Court should notrestrict its review on the validity of the MOA-AD which is butthe end product of the flawed conduct of the peace negotiationwith the MILF.

Requirements of Ripeness andMootness are not bars to review

In contending that this Court should refrain from resolving themerits of the petitions at bar, two principal defenses weredeployed by the Solicitor General: the issues raised forresolution are not ripe for adjudication and regardless of theirripeness, are moot.

With due respect, the defenses cannot be sustained. Tocontend that an issue is not ripe for adjudication is to invoke

17 Amending Sections 5(c) and 11 of Executive Order No. 3, s-2001,Defining the Policy and Administrative Structure for Government’sComprehensive Peace Efforts, August 3, 2006.

18 Individually, these documents have been identified as terms ofreferents for the MOA.


prematurity;19 that the issue has not reached a state wherejudicial intervention is necessary, hence, there is in reality noactual controversy. On the other hand, to urge that an issue hasbecome moot concedes that judicial intervention was onceproper but subsequent developments make further judicialaction unnecessary. Together, mootness and ripeness act as atwo-pronged pincer, squeezing the resolution of controversieswithin a narrow timeframe.20

First, the issues at bar are ripe for resolution. In Ohio ForestryAss’n Inc. v. Sierra Club,21 the following factors were identifiedas indicative of the ripeness of a controversy:

1. Whether delayed review would cause hardship to theplaintiffs;

2. Whether judicial intervention would inappropriatelyinterfere with further administrative action;

3. Whether the Court would benefit from further factualdevelopment of the issues presented;

Underlying the use of the foregoing factors is first, thesetting of a threshold for review and second, judicial applicationof the threshold to the facts extant in a controversy. Irespectfully submit that where a controversy concernsfundamental constitutional questions, the threshold must beadjusted to allow judicial scrutiny, in order that the issues maybe resolved at the earliest stage before anything irreversible isundertaken under cover of an unconstitutional act. Schwartzcites one vital consideration in determining ripeness, viz:

In dealing with ripeness, one must distinguish between statutesand other acts that are self-executing and those that are not.If a statute is self executing, it is ripe for challenge as soon as itis enacted. For such a statute to be subject to judicial review,

19 Schwartz, Bernard. Constitutional Law at p. 25 (1972).20 Bowen v. Roy, 476 U.S. 693, 722 (1976).21 523 U.S. 726 (1998).


it is not necessary that it be applied by an administrator, aprosecutor, or some other enforcement officer in a concretecase.22

Although Schwartz employs the term “statute,” he qualifiesthat the principle enunciated applies to other governmentalacts as well.23

Prescinding from these parameters, it is evident that theCourt is confronted with a MOA-AD that is heavily laden withself-executing components. Far from the representation of theSolicitor General, the MOA-AD is not a mere collection ofconsensus points,24 still bereft of any legal consequence. Thecommitments made by the government panel under the MOA-AD can be divided into (1) those which are self-executory or areimmediately effective by the terms of the MOA-AD alone, (2)those with a period or which are to be effective within astipulated time, and (3) those that are conditional or whoseeffectivity depends on the outcome of a plebiscite.

Let us cast an eye on the self executory provisions of theMOA-AD which will demolish the argument of the respondentsthat the issues in the petitions at bar are not ripe foradjudication.

The MOA-AD provides that “the Parties affirm that the coreof the BJE shall constitute the present geographic area of theARMM, including the municipalities of Baloi, Munai, Nunungan,Pantar, Tagoloan and Tangkal in the province of Lanao del Nortethat voted for inclusion in the ARMM during the 2001 plebiscite.”

The MOA-AD then proceeds to enumerate the powers thatthe BJE possesses within its area. The BJE is granted powers ofgovernance which it can exercise without need of amendmentsto be made to the Constitution or existing law or withoutimposing any condition whatsoever.22 Supra note 18, at 25.23 Id. at 78.24 Memorandum for the Respondents Government of the Republic of

the Philippines Peace Panel on the Ancestral Domain, September26, 2008, p. 16.


The MOA-AD also gives the BJE the unconditional right toparticipate in international meetings and events, e.g., ASEANmeetings and other specialized agencies of the United Nations.25

It grants BJE the right to participate in Philippine official missionsand delegations that are engaged in the negotiation of borderagreements or protocols for environmental protection,equitable sharing of incomes and revenues, in addition to thoseof fishing rights.26 Again, these rights are given to the BJE withoutimposing prior conditions such as amendments to theConstitution, existing law or the enactment of new legislation.

Next, let us go to provisions of the MOA-AD with a periodwhich will further demonstrate the lack of merit of respondents’posture that the petitions at bar are not ripe for adjudication.The MOA-AD provides that “without derogating from therequirements of prior agreements,27 the Government stipulates25 Id., Resources, No. 4(b), p. 8.26 Memorandum of Agreement on Ancestral Domain Aspect of the

GRP-MILF Tripoli Agreement of Peace of 2001, Territory, No. 2(f), p.4.

27 The Agreement for General Cessation of Hostilities dated July 18,1997 Between the GRP and the MILF, and its ImplementingAdministrative and Operational Guidelines; The General Frameworkof Agreement of Intent Between the GRP and the MILF dated August27, 1998; The Agreement on the General Framework for theResumption of Peace Talks Between the GRP and the MILF datedMarch 24, 2001; The Tripoli Agreement on Peace Between the GRPand the MILF dated June 22, 2001; The Tripoli Agreement Betweenthe GRP and the Moro National Liberation Front (MNLF) datedDecember 23, 1976 and the Final Agreement on the Implementationof the 1976 Tripoli Agreement Between the GRP and the MNLF datedSeptember 2, 1996; Republic Act No. 6734, as amended by RA No.9054, otherwise known as “An Act to Strengthen and Expand theAutonomous Region in Muslim Mindanao (ARMM)”; ILO ConventionNo. 169, in correlation to the UN Declaration on the Rights of theIndigenous Peoples, and Republic Act No. 8371 otherwise knownas the Indigenous Peoples Rights Act of 1997, the UN Charter; theUN Universal Declaration on Human Rights, InternationalHumanitarian Law (IHL), and internationally recognized humanrights instruments.


to conduct and deliver, within 12 months following the signingof the Memorandum of Agreement on Ancestral Domain, aplebiscite covering the areas as enumerated in the list anddepicted in the map as Category A x x x the Parties shall endeavorto complete negotiations and resolve all outstanding issues onthe Comprehensive Compact within 15 months from signing ofthe MOA-AD.”28 Once more, it is evident that no conditionswere imposed with respect to the conduct of a plebiscite withintwelve months following the signing of the MOA-AD. Theprovision starkly states that within twelve months, thegovernment will conduct and deliver a plebiscite covering areasunder Category A of the MOA-AD.

We now come to respondents’ argument on mootness. Indetermining whether a case has been rendered moot, courtslook at the development of events to ascertain whether thepetitioner making the constitutional challenge is confrontedwith a continuing harm or a substantial potential of harm.Mootness is sometimes viewed as “the doctrine of standing setin a time frame: The requisite personal interest must exist atthe commencement of the litigation and must continuethroughout its existence.”29 Stated otherwise, an actualcontroversy must be extant at all stages of judicial review, notmerely at the time the complaint is filed.30

Respondents insist that the petitions at bar are moot forthree reasons: (1) the petitioners North Cotabato andZamboanga have already been furnished copies of the MOA-AD; (2) the Executive Secretary has issued a Memorandum thatthe government will not sign the MOA-AD and, (3) the GRPPeace Panel has been dissolved by the President.

These grounds are barren grounds. For one, the pressstatements of the Presidential Adviser on the Peace Process,

28 Memorandum of Agreement on Ancestral Domain, Territory, 2(d),p. 3.

29 United States Parole Commission v. Geraghty, 445 U.S. 388, 397 (1980)quoting Henry Monaghan, “Constitutional Adjudication: The Whoand When,” 82 Yale L.J. 1363, 1384 (1973).

30 Preiser v. Newkirk, 422 U.S. 395, 401–02 (1975).


Gen. Hermogenes Esperon, Jr., are clear that the MOA-AD willstill be used as a major reference in future negotiations.31 Foranother, the MILF considers the MOA-AD a “done deal,”32 hence,ready for implementation. On the other hand, the peace panelmay have been temporarily dismantled but the structures setup by the Executive and their guidelines which gave rise to thepresent controversy remain intact. With all these realities, thepetitions at bar fall within that exceptional class of cases whichought to be decided despite their mootness because thecomplained unconstitutional acts are “capable of repetition yetevading review.”33

This well-accepted exception to the non-reviewability ofmoot cases was first enunciated in the case of Southern PacificTerminal Co. v. ICC.34 The United States Supreme Court heldthat a case is not moot where interests of a public character areasserted under conditions that may be immediately repeated,merely because the particular order involved has expired.

In the petitions at bar, one need not butt heads with theSolicitor General to demonstrate the numerous constitutionalinfirmities of the MOA-AD. There is no need to iterate andreiterate them. Suffice to stress that it is because of theseevident breaches, that the MOA-AD requires the presentConstitution to undergo radical revisions. Yet, the unblushingthreat is made that the MOA-AD which shattered tosmithereens all respect to the Constitution will continue to bea reference point in future peace negotiations with the MILF. Infine, the MOA-AD is a constitutional nightmare that will comeand torment us again in the near future. It must be slain now. Itis not moot.

Let us adhere to the orthodox thought that once acontroversy as to the application of a constitutional provision is31 Memorandum of Petitioners-Intervenors Franklin Drilon and Adel

Tamano, September 18, 2008, p. 2.32 Id. at 13.33 David v. Macapagal-Arroyo, G.R. No. 171396, 489 SCRA 160, May 3,

2006.34 219 U.S. 498 (1911).


raised before this Court, it becomes a legal issue which theCourt is hide-bound to decide.35 Supervening events, whethercontrived or accidental, cannot prevent the Court fromrendering a decision if there is a grave violation of theConstitution has already been committed or the threat of beingcommitted again is not a hypothetical fear.36 It is the function ofjudicial review to uphold the Constitution at all cost or we forfeitthe faith of the people.

III. THE DEVIATION FROM THE MNLF MODEL OFPURSUING PEACE WITH REBELS IS INEXPLICABLE

The MNLF model in dealing with rebels which culminated inthe Peace Agreement of 1996, was free from any infirmitybecause it respected the metes and bounds of the Constitution.While the MNLF model is ostensibly based on the TripoliAgreement of 1976, its implementation was in perfect accordwith Philippine laws. The implementation of the TripoliAgreement of 1976 came in two phases: the first, under thelegislative power of then President Marcos and the second,under the provisions of Article X of the 1987 Constitution andits implementing legislation, Republic Act No. 6734.37

Under President Marcos, autonomy in the affectedprovinces was recognized through Presidential ProclamationNo. 1628. It declared autonomy in 13 provinces and constituteda provisional government for the affected areas. Theproclamation was followed by a plebiscite and the finalframework for the autonomous region was embodied inPresidential Decree No. 1618.

The establishment of the autonomous region under PD No.1628 was constitutionalized by the commissioners in the 1987Constitution as shown by the following exchange of views:

35 Tanada v. Angara, 338 Phil. 546, 574 (1997).36 Chavez v. Public Estates Authority, 433 Phil. 522 (2002).37 An Act Providing for an Organic Act for the Autonomous Region in

Muslim Mindanao, August 1, 1989.


MR. ALONTO: Madam President, I have stated from the start ofour consideration of this Article on Local Governments thatthe autonomous region exists now in this country. There is ade facto existence of an autonomous government in what wecall now Regions IX and XII. Region IX is composed of theprovinces of Tawi-Tawi, Sulu, Basilan, Zamboanga City,Zamboanga del Sur and Zamboanga del Norte, including allthe component cities in the provinces. Region XII is composedof the Provinces of Lanao del Norte, Lanao del Sur,Maguindanao, Sultan Kudarat and North Cotabato. Thisautonomous region has its central governmental headquartersin Zamboanga City for Region IX and in Cotabato City for RegionXII. In fact, it is stated by Commissioner Ople that it has anexecutive commission and a legislative assembly.

MR. DE CASTRO: Madam President.

MR. ALONTO: These two regions have been organized by virtueof PD No. 1618 of President Marcos, as amended by PD No.1843.


MR. ALONTO: If the Gentleman will bear with me, I will explainto him. That is why there is a de facto autonomous governmentexisting in Mindanao


THE PRESIDENT: May we please allow Commissioner Alonto tofinish his remarks before any interruption?

MR. DE CASTRO: Yes Madam President.

MR. ALONTO: Madam President, this autonomous region isrecognized by the present regime for the very reason that thepresent regime is now in the process of a negotiation with theMoro National Liberation Front. In a way, what we are doing isto give constitutional basis for the President of this countrytoday to proceed with the negotiation with the Moro NationalLiberation Front.

THE PRESIDENT: Commissioner Uka is recognized.

MR. UKA: Madam President, not only that. President CorazonC. Aquino has appointed Mr. Albert Tugum as the Chairman of


Region IX and Mr. Datu Zakaria Candau as chairman of RegionXII. They are doing their work well right now. So there are tworecognized autonomous regions. They have also a completeregional assembly as the legislative body. So, it is only a matterof putting this in the Constitution.

THE PRESIDENT: So, what is before the body is the proposedamendment on Line 11 of Section 1.

Commissioner de Castro is recognized.

MR. DE CASTRO: Madam President, if there is now anautonomous region in Mindanao and if, according to theHonorable Ople, this has the recognition of the centralgovernment, what then is the use of creating autonomousregions in Muslim Mindanao and going through the processof a plebiscite and enacting an organic act?

My amendment is simply to clarify the term “MuslimMindanao.” I really did not expect that this will go this far —that it is being placed in the Constitution, that it is a faitaccompli and that all we have to do here is say “amen” to thewhole thing and if we do not say “amen,” they will still continueto be autonomous regions. I insist on my amendment, MadamPresident.

MR. OPLE: May I provide more information to Commissionerde Castro on this matter.

First of all, we have to correct the misimpression that theautonomous regions, such as they now exist in Mindanao, donot enjoy the recognition of the central government. Secondly,may I point out that the autonomy existing now in Regions IXand XII is a very imperfect kind of autonomy. We are notsatisfied with the legal sufficiency of these regions asautonomous regions and that is the reason the initiative hasbeen taken in order to guarantee by the Constitution the rightto autonomy of the people embraced in these regions and notmerely on the sufferance of any existing or futureadministration. It is a right, moreover, for which they havewaged heroic struggles, not only in this generation but inprevious eras and, therefore, what we seek is constitutionalpermanence for this right.


May I also point out, Madam President, that the TripoliAgreement was negotiated under the aegis of foreign powers.No matter how friendly and sympathetic they are to our country,this is under the aegis of the 42-nation Islamic Conference.Should our brothers look across the seas to a conclave offoreign governments so that their rights may be recognized inthe Constitution? Do they have to depend upon foreignsympathy so that their right can be recognized in final,constitutional and durable form.

THE PRESIDENT: Commissioner Ople, the consensus here is togrant autonomy to the Muslim areas of Mindanao?

MR. OPLE: Yes. (Emphasis supplied)38

Clearly, the mandate for the creation of the ARMM is derivedprincipally from the 1987 Constitution. Thereafter, ARRM wasgiven life by Republic Act No. 6734,39 the Organic Act of theARMM. Our executive officials were guided by and did not strayaway from these legal mandates at the negotiation andexecution of the Peace Agreement with the MNLF in 1996.Without ifs and buts, its Whereas Clauses affirmed oursovereignty and territorial integrity and completely respectedour Constitution.40

In stark contrast, the peace process with the MILF draws itsmandate principally from Executive Order No. 3. This executiveorder provided the basis for the execution of the TripoliAgreement of 2001 and thereafter, the MOA-AD. During thewhole process, the government peace negotiators conductedthemselves free from the strictures of the Constitution. Theyplayed fast and loose with the do’s and dont’s of theConstitution. They acted as if the grant of executive power tothe President allows them as agents to make agreements withthe MILF in violation of the Constitution. They acted as if theseviolations can anyway be cured by committing that the sovereign

38 III CONSTITUTIONAL RECORD 495–496.39 Republic Act No. 6734 was later amended by Republic Act No. 9504.

The latter law took into account the terms of the Tripoli Agreement.40 11th Whereas Clause.


people will change the Constitution to conform with the MOA-AD. They forgot that the Constitution grants power but alsosets some impotence on power.

IV. THE EXERCISE OF EXECUTIVE POWER ISSUBJECT TO THE CONSTITUTION

Clearly, the respondents grossly misunderstood and patentlymisapplied the executive powers of the President.

The MILF problem is a problem of rebellion penalized underthe Revised Penal Code.41 The MILF is but a rebel group. It hasnot acquired any belligerency status. The rebellion of the MILFis recognized expressly by E.O. No. 342 as well as by E.O. No.555.43 The President’s powers in dealing with rebellion arespelled out in Article VII, Section 18 of the Constitution, viz:

The President shall be the Commander-in-Chief of all armedforces of the Philippines and whenever it becomes necessary,he may call out such armed forces to prevent or suppresslawless violence, invasion or rebellion. In case of invasion orrebellion, when the public safety requires it, he may, for aperiod not exceeding 60 days, suspend the privilege of the writof habeas corpus or place the Philippines or any part thereofunder martial law. Within 48 hours from the proclamation ofmartial law or the suspension of the privilege of the writ ofhabeas corpus, the President shall submit a report in personor in writing to the Congress. The Congress, voting jointly, by avote of at least a majority of all its Members in regular orspecial session, may revoke such proclamation or suspension,which revocation shall not be set aside by the President. Uponthe initiative of the President, the Congress may, in the samemanner, extend such proclamation or suspension for a periodto be determined by the Congress, if the invasion or rebellionshall persist and public safety requires it.

41 Article 134, Revised Penal Code.42 Section 4(c) provides for a “peaceful negotiated settlement” with

the different rebel groups.43 Creating a government peace panel to deal with the MILF.


The Congress, if not in session, shall, within 24 hours followingsuch proclamation or suspension, convene in accordance withits rules without need of a call.

The Supreme Court may review, in an appropriate proceedingfiled by any citizen, the sufficiency of the factual basis of theproclamation of martial law or the suspension of the privilegeof the writ of habeas corpus or the extension thereof, and mustpromulgate its decision thereon within 30 days from its filing.

A state of martial law does not suspend the operation of theConstitution, nor supplant the functioning of the civil courtsor legislative assemblies, nor authorize the conferment ofjurisdiction on military courts and agencies over civilianswhere civil courts are able to function, nor automaticallysuspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpusshall apply only to persons judicially charged for rebellion oroffenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeascorpus, any person thus arrested or detained shall be judiciallycharged within three days, otherwise he shall be released.

These are the well crafted commander-in-chief powers ofthe President. They enumerate with exactitude the powerswhich the President should use in dealing with rebellion. Theyare graduated in degrees. The strongest of these powers is thepower to declare martial law and worthy to note, its exercise issubject to restraints. But more important, all these commander-in-chief powers can only be used to quell the rebellion. Theycannot be utilized to dismember the State or to create a statewithin our State and hand it over to the MILF rebels.

In dealing with the MILF rebellion, the President may,however, opt not to use force but negotiate peace with theMILF. Undoubtedly, the President as Chief Executive cannegotiate peace with rebels, like the MILF. Article VII, section 1of the Constitution vests in the President the entire panoply ofexecutive power, to reach peace with rebels. But undoubtedlytoo, the exercise of executive power to secure peace with rebelsis limited by the Constitution.


All these is due to the preeminent principle that ourgovernment is fundamentally one of limited and enumeratedpowers. As well stated in Angara v. Electoral Commission,44 viz:

But in the main, the Constitution has blocked out with deftstrokes and in bold lines, allotment of power to the executive,the legislative and the judicial departments of the government.The overlapping and interlacing of functions and dutiesbetween the several departments, however, sometimes makesit hard to say just where the one leaves off and the otherbegins. In times of social disquietude or political excitement,the great landmarks of the Constitution are apt to be forgottenor marred, if not entirely obliterated. In cases of conflict, thejudicial department is the only constitutional organ whichcan be called upon to determine the proper allocation ofpowers between the several departments and among theintegral or constituent units thereof.

In fine, there is no power in the Constitution that can runriot. There is no power in the Constitution that is unbounded.There is no power in the Constitution that can be exercised if itwill destroy the Constitution. For all powers in the Constitutionare designed to preserve the Constitution.

In other words, the President as Chief Executive cannegotiate peace with the MILF but it is peace that will insurethat our laws are faithfully executed. The President can seekpeace with the MILF but without crossing the parameters ofpowers marked in the Constitution to separate the otherbranches of government to preserve our democracy. For evenin times of war, our system of checks and balances cannot beinfringed.45 More so in times where the only danger that facesthe State is the lesser danger of rebellion.

Needless to stress, the power of the President to negotiatepeace with the MILF is not plenary. While a considerable degreeof flexibility and breadth is accorded to the peace negotiatingpanel, the latitude has its limits – the Constitution. TheConstitution was ordained by the sovereign people and its

44 G.R. No. 45081, July 15, 1936.45 Ex Parte Milligan 71 U.S. 2 (1866).


postulates may not be employed as bargaining chips withouttheir prior consent.

V. THE CONSTITUTION AS COMPACT OF THE PEOPLE

The question may be asked: In the process of negotiating peacewith the MILF, why cannot the Executive commit to do acts whichare prohibited by the Constitution and seek their ratificationlater by its amendment or revision?

Many philosophical perspectives have been advanced inreply to this question. Yet, no theory has been as influential,nor has been as authoritative, as the social contract theory,46

articulated by John Locke, viz:

For when any number of men have, by the consent of everyindividual, made a community, they have thereby made thatcommunity one body, with a power to act as one body, which isonly by the will and determination of the majority: for thatwhich acts any community, being only the consent of theindividuals of it, and it being necessary to that which is onebody to move one way; it is necessary the body should movethat way whither the greater force carries it, which is theconsent of the majority: or else it is impossible it should actor continue one body, one community, which the consent ofevery individual that united into it, agreed that it should; andso every one is bound by that consent to be concluded by themajority. And therefore we see, that in assemblies, empoweredto act by positive laws, where no number is set by that positivelaw which empowers them, the act of the majority passes forthe act of the whole, and of course determines, as having, bythe law of nature and reason, the power of the whole.47

The French philosopher, Jean Jacques Rosseau stressed thenon-derogability of this social contract, viz:

46 Curtis, Michael M., The Great Political Theories at p. 360. This iswith reference in particular to John Locke.

47 Locke, John, Second Treatise on Civil Government. Chapter VII,Section 96. Accessible at <http://www.constitution.org/jl/2ndtr08.txt.> (Last accessed October 8, 2008).


But the body politic or sovereign, deriving its existence onlyfrom the sanctity of the contract, can never bind itself, even toothers, in anything that derogates from the original act, suchas alienation of some portion of itself, or submission toanother sovereign. To violate the act by which it exists wouldbe to annihilate itself; and what is nothing produces nothing.48

Dean Vicente Sinco of the U.P. College of Law articulatedthese precepts in his seminal work, Philippine Political Law,viz:

As adopted in our system of jurisprudence a constitution is awritten instrument which serves as the fundamental law ofthe state. In theory, it is the creation of the will of the people,who are deemed the source of all political powers. It providesfor the organization of the essential departments ofgovernment, determines and limits their powers, andprescribes guarantees to the basic rights of the individual.49

x x x x

Some authorities have also considered the constitution as acompact, an “agreement of the people, in their individualcapacities, reduced to writing, establishing and fixing certainprinciples for the government of themselves.” This notionexpresses the old theory of the social contract obligatory onall parties and revocable by no one individual or group lessthan the majority of the people; otherwise it will not have theattribute of law.50 (Emphasis supplied)

In sum, there is no power nor is there any right to violatethe Constitution on the part of any official of government. Noone can claim he has a blank check to violate the Constitution inadvance and the privilege to cure the violation later throughamendment of its provisions. Respondents’ thesis of violatenow, validate later makes a burlesque of the Constitution.

I vote to grant the petitions.48 Rosseau, Jean Jacques, The Social Contract Henry J. Tozer

Translation, Ch. VI at pp. 20–21.49 Sinco, Vicente G., Philippine Political Law, at p. 66 10th ed. (1954).50 Id. at 66–67.

177PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J YNARES-SANTIAGO, CONCURRING OPINION


Ynares-Santiago, J.:

I join the majority opinion and concur in the views expressed inthe ponencia. More particularly, I register my agreement inprohibiting respondents and their agents from signing andexecuting the Memorandum of Agreement on Ancestral Domain(MOA-AD), or any similar instruments. The said MOA-ADcontains provisions which are repugnant to the Constitutionand which will result in the virtual surrender of part of thePhilippines’ territorial sovereignty, which our people has spentdecades fighting for and which scores of men in uniform havevaliantly defended.

While the ponencia exhaustively discusses the groundsupon which the Court must invalidate and strike down the manyquestionable provisions of the MOA-AD, I wish to add someimportant points which, I hope, will serve to further highlightand underscore the serious constitutional flaws in the MOA-AD.

Only after certain quarters took notice and raised a clamor,and only after this Court has issued a temporary restrainingorder enjoining the signing of the MOA-AD, did respondents,through the Office of the Solicitor General and the ExecutiveSecretary, openly declare that the MOA-AD or any similarinstrument will not be signed by the GRP. On this basis,respondents assert that the petitions have become moot andacademic. This, to my mind, was a mere afterthought. For wereit not for the timely exposure of the MOA-AD in the publiclight, the signing thereof would have gone ahead as planned.

Furthermore, respondents’ protestations that the petitionshave become moot and academic in view of the disclosure andnon-signing of the MOA-AD is unavailing, as it is well-recognizedthat mootness, as a ground for dismissal of a case, is subject tocertain exceptions. In David v. Pres. Arroyo,1 we held that theCourt will decide cases, otherwise moot and academic, if: (1)there is a grave violation of the Constitution; (2) the situation is1 G.R. No. 171396, May 3, 2006, 489 SCRA 160, 214–215.


exceptional in character and paramount public interest isinvolved; (3) the constitutional issues raised requiresformulation of controlling principles to guide the bench, thebar and the public; and (4) the case is capable of repetition yetevading review. To my mind, all of these circumstances arepresent in the cases at bar.

It is beyond cavil that these petitions involve matters thatare of paramount public interest and concern. As shown byrecent events, the MOA-AD has spawned violent conflicts inMindanao and has polarized our nation over its real import andeffects. The controversy over the agreement has resulted inunnecessary loss of lives, destruction of property and generaldiscord in that part of our country. Strong reasons of public policyand the importance of these cases to the public demands thatwe settle the issues promptly and definitely, brushing aside, ifwe must, technicalities of procedure.

The petitions also allege that the GRP panel committedgrave violations of the Constitution when it negotiated andagreed to terms that directly contravene the fundamental law.The basic issue which emerged from all the assertions of theparties is not only whether the MOA-AD should be disclosed orsigned at all but, more significantly, whether the GRP panelexceeded its powers in negotiating an agreement that containsunconstitutional stipulations. Considering that it has beenwidely announced that the peace process will continue, andthat a new panel may be constituted to enter into similarnegotiations with the MILF, it is necessary to resolve the issueon the GRP panel’s authority in order to establish guiding andcontrolling principles on its extent and limits. By doing so, arepetition of the unfortunate events which transpired in thewake of the MOA-AD can hopefully be avoided.

There is also the possibility that an agreement with termssimilar to the MOA-AD may again be drafted in the future.Indeed, respondents cannot prevent this Court fromdetermining the extent of the GRP panel’s authority by thesimple expedient of claiming that such an agreement will notbe signed or that the peace panel will be dissolved. There willbe no opportunity to finally the settle the question of whethera negotiating panel can freely stipulate on terms that transgress


our laws and our Constitution. It can thus be said thatrespondents’ act of negotiating a peace agreement similar tothe MOA-AD is capable of repetition yet evading review.2

The ultimate issue in these cases is whether the GRP panelwent beyond its powers when it negotiated terms thatcontravene the Constitution. It is claimed that the panelstipulated on matters that were outside of its authority andunder the exclusive prerogative of Congress. In other words,the constitutional as well as legal limits of executive authorityin the drafting of a peace agreement have been squarely put inissue. This involves a genuine constitutional question that theCourt has the right and duty to resolve.

Respondents insist that it is not necessary to discuss theconstitutionality of each provision of the MOA-AD, because thelatter is but a codification of consensus points which creates norights and obligations between the parties. The MOA-ADallegedly has no legal effects, even if it is signed, because it ismerely a preliminary agreement whose effectivity depends onsubsequent legal processes such as the formulation of aComprehensive Compact, the holding of a plebiscite, theamendment of laws by Congress as well as constitutionalamendments. Consequently, it would be premature for theCourt to pass upon the constitutional validity of the MOA-ADsince it is neither self-executory nor is it the final peaceagreement between the GRP and MILF.

A reading of the MOA-AD shows that its pertinentprovisions on the basic concepts, territory, resources andgovernance of the Bangsamoro Juridical Entity (BJE) have beenmade to depend for its effectivity on “changes to the legalframework.” Paragraph 7 on the provisions on Governancestates:

7. The parties agree that the mechanisms and modalities forthe actual implementation of this MOA-AD shall be speltout in the Comprehensive Compact to mutually take suchsteps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments tothe existing legal framework shall come into force upon

2 Alunan III v. Mirasol, 342 Phil. 467, 476–477 (1997).


signing of a Comprehensive Compact and upon effectingthe necessary changes to the legal framework with dueregard to non-derogation of prior agreements and withinthe stipulated timeframe to be contained in theComprehensive Compact.

The provisions of the MOA-AD which require “amendmentsto the existing legal framework” include practically all thesubstantive terms of the document. It is not difficult to foreseethat the material provisions of the MOA-AD will require eitheran amendment to the Constitution or to existing laws to becomelegally effective. Some of the required constitutional orstatutory amendments are the following:

a) Article I, Section 13 of the Constitution has to be amendedto segregate the BJE territory from the rest of the Republicof the Philippines, as the MOA-AD delineates theBangsamoro homeland under its paragraph 14 onTerritory;

b) Section 1, Article X5 of the Constitution will have to includethe BJE as among the five kinds of political subdivisionsrecognized under the fundamental law. The provision ofan Autonomous Region for Muslim Mindanao (ARMM)

3 ARTICLE I, SECTION 1. The national territory comprises the PhilippineArchipelago, with all the islands and waters embraced therein,and all other territories over which the Philippines has sovereigntyor jurisdiction, consisting of its terrestrial, fluvial and aerialdomains, including its territorial sea, the seabed, the subsoil, theinsular shelves, and other submarine areas, the waters around,between, and connecting the islands of the archipelago, regardlessof their breadth and dimensions, form part of the internal watersof the Philippines.

4 1. The Bangsamoro homeland and historic territory refer to theland mass as well as the maritime, terrestrial, fluvial andalluvial domains, and the aerial domain, the atmosphericspace above it, embracing the Mindanao-Sulu-Palawangeographic region. However, delimitations are contained inthe agreed Schedules (Categories).

5 ART. X, SECTION 1. The territorial and political subdivisions of theRepublic of the Philippines are the provinces, cities, municipalities


will also have to be removed as the same is incorporatedin the BJE per paragraph 2.c6 of the MOA-AD provisions onTerritory;

c) The provision in Section 15, Article X7 of the Constitutionwhich declares the creation of the ARMM “within theframework of this Constitution and the nationalsovereignty as well as territorial integrity of the Republicof the Philippines” must also be changed since there is noprovision in the MOA-AD that subjects the BJE to theauthority, territory and sovereignty of the Republic of thePhilippines;

d) Section 16, Article X8 of the Constitution which gives thePresident power to supervise autonomous regions willhave to be amended since the MOA-AD does not providefor such supervision over the BJE;

e) Section 18, Article X9 of the Constitution which requirespersonal, family and property laws of autonomous

and barangays. There shall be autonomous regions in MuslimMindanao and the Cordillera as hereinafter provided.

6 The provision states:

c. The parties affirm that the core of the BJE shall constitute thepresent geographic area of the ARMM, including themunicipalities of Baloi, Munai, Nunungan, Pantar, Tagoloanand Tangkal in the province of Lanao Del Norte that voted forinclusion in the ARMM during the 2001 plebiscite.

7 ART. X, SEC. 15. There shall be created Autonomous Regions in MuslimMindanao and in the Cordilleras consisting of provinces, cities,municipalities and geographic areas sharing common anddistinctive historical and cultural heritage, economic and socialstructures, and other relevant characteristics within the frameworkof this Constitution and the national sovereignty as well asterritorial integrity of the Republic of the Philippines.

8 ART. X, SEC. 16. The President shall exercise general supervisionover autonomous regions to ensure that the laws are faithfullyexecuted.

9 ART. X, SEC. 18. The Congress shall enact an organic act for eachautonomous region with the assistance and participation of the


regions to comply with the Constitution and laws willhave to be changed as the MOA-AD grants the BJE the powerto make its own laws;

f) An overhaul of the various constitutional provisionsrelating to the Executive, Judicial and LegislativeDepartments as well as the independent constitutionalcommissions must be undertaken to accommodateparagraph 810 of the MOA-AD provision on Governancewhich grants the BJE the power to create its own civilinstitutions;

g) Section 3, Article II of the Constitution which declares theArmed Forces of the Philippines as protector of the peopleand the State will have to be changed because the MOA-AD provides that the BJE shall have its own internalsecurity force11 and the AFP will only defend theBangsamoro homeland against external aggression;12

regional consultative commission composed of representativesappointed by the President from a list of nominees frommultisectoral bodies. The organic act shall define the basicstructure of government for the region consisting of executivedepartment and legislative assembly. Both of which shall be electiveand representative of the constituent political units. The organicacts shall likewise provide for special courts with personal, family,and property law jurisdiction consistent with the Constitution andnational laws. x x x

10 Paragraph 8, Governance. The parties agree that the BJE shall beempowered to build, develop and maintain its own institutions,inclusive of civil service, electoral, financial and banking,education, legislation, legal, economic, and police and internalsecurity force, judicial system and correctional institutions,necessary for developing a progressive Bangsamoro society, thedetails of which shall be discussed in the negotiation of theComprehensive Compact.

11 Id.12 Paragraph 4, Resources. The BJE is free to enter into any economic

cooperation and trade relations with foreign countries: provided,however, that such relationships and understandings do notinclude aggression against the Government of the Republic of the


h) Section 2, Article XII13 of the Constitution must be changedto allow the BJE to manage, explore, develop, and utilizethe natural resources within the Bangsamoro territory,pursuant to paragraphs 2.f,14 g (1)15 and h16 on Territory

Philippines; provided, further that it shall remain the duty andobligation of the Central Government to take charge of externaldefense. Without prejudice to the right of the Bangsamoro juridicalentity to enter into agreement and environmental cooperation withany friendly country affecting its jurisdiction.

13 ART. XII, SEC. 2. All lands of the public domain, waters, minerals,coal, petroleum and other mineral oils, all forces of potentialenergy, fisheries, forests or timber, wildlife, flora and fauna andother natural resources are owned by the State. With the exceptionof agricultural lands, all other natural resources shall not bealienated. The exploration, development, and utilization of naturalresources shall be under the full control and supervision of theState. x x x

14 Paragraph 2.f, Territory. Internal Waters:

The BJE shall have jurisdiction over the management, conservation,development, protection, utilization and disposition of all naturalresources, living and non-living, within its internal waters extending15 kilometers from the coastline of the BJE area.

15 Paragraph 2.g(1), Territory. Territorial Waters:

(1) The territorial waters of the BJE shall stretch beyond the BJEinternal waters up to the Republic of the Philippines (RP)baselines southeast and southwest of Mainland Mindanao.Beyond the 15 kilometers internal waters, the CentralGovernment and the BJE shall exercise joint jurisdiction,authority and management over areas and all naturalresources x x x.

16 Paragraph 2.h, Territory. Sharing of Minerals on Territorial Waters:

Consistent with paragraphs 5 and 6 of the provisions on Resources,all potential sources of energy, petroleum in situ, hydrocarbon,natural gas and other minerals, including deposits or fields foundwithin territorial waters, shall be shared between the CentralGovernment and the BJE in favor of the latter through productionsharing agreement or economic cooperation agreement.


and paragraphs 117 and 218 on Resources of the MOA-AD;

i) Section 21, Article VII19 of the Constitution has to beamended to exempt the BJE from the ratificationrequirements of treaties and international agreementssince it is given the power to enter into its own economicand trade agreements with other countries;

17 Paragraph 1, Resources. The BJE is empowered with authority andresponsibility for the land use, development, conservation anddisposition of the natural resources within the homeland. Uponentrenchment of the BJE, the land tenure and use of such resourcesand wealth must reinforce their economic self-sufficiency. x x x

18 Paragraph 2, Resources. The Bangsamoro People through theirappropriate juridical entity shall, among others, exercise poweror authority over the natural resources within its territorialjurisdiction:

1. To explore, exploit, use or utilize and develop their ancestraldomain and ancestral lands within their territorialjurisdiction, inclusive of their right of occupation, possession,conservation, and exploitation of all natural resources foundtherein;

2. x x x

3. To utilize, develop, and exploit its natural resources found intheir ancestral domain or enter into joint development,utilization, and exploitation of natural resources, specificallyon strategic minerals, designed as commons or sharedresources, which is tied up to the final setting of appropriateinstitutions;

To revoke of grant forest concessions, timber license, contractsor agreements in the utilization and exploitation of naturalresources designated as commons or shared resources,mechanisms for economic cooperation with respect tostrategic minerals, falling within the territorial jurisdictionof the BJE; x x x

19 ART. VII, SEC. 21. No treaty or international agreement shall be validand effective unless concurred in by at least two-thirds of allMembers of the Senate.


j) The Bangsamoro homeland will have to be exempted fromthe power of the President to exercise general supervisionof all local governments under Section 4, Article X20 of theConstitution because the MOA-AD does not provide forany such stipulation;

k) Since the BJE will have its own laws, it is not subject tolimitations imposed by Congress on its taxing powersunder Section 5, Article X21 of the Constitution;

l) RA No. 6734 and RA No. 9054, or the ARMM Organic Acts,have to be amended to allow for the existing ARMM to beincluded within the Bangsamoro homeland to be governedby the BJE;

m) The Bangsamoro people will have to be exempted fromthe application of RA No. 8371 or the Indigenous PeoplesRights Act (IPRA) insofar as the MOA-AD declares theBangsamoro territory as ancestral domain and recognizesin the Bangsamoro people rights pertaining to indigenouspeoples under the IPRA;

n) Existing laws which regulate mining rights and theexploitation of natural resources will also have to exemptthe BJE from its coverage, as the MOA-AD grants the BJEthe power to utilize, develop and exploit natural resourceswithin its territory as well as the authority to revoke orgrant forest concessions, timber licenses and miningagreements; and

o) The BJE will also have to be exempted from existingagrarian statutes as the BJE is empowered to enact its

20 ART. X, SEC. 4. The President of the Philippines shall exercise generalsupervision over local governments. x x x

21 ART. X, SEC. 5. Each local government unit shall have the power tocreate its own sources of revenues and to levy taxes, fees, andcharges subject to such guidelines and limitations as the Congressmay provide, consistent with the basic policy of local autonomy.Such taxes, fees and charges shall accrue exclusively to the localgovernment.


own agrarian laws and program under paragraph 2.e22

on Resources.

From the foregoing, it is clear that the substantive provisionsof the MOA-AD directly contravene the fundamental law andexisting statutes. Otherwise, it would not be necessary to effecteither statutory or constitutional amendments to make iteffective. Moreover, as correctly pointed out by petitioners,the GRP panel exceeded its authority when it categoricallyundertook to make these statutory and constitutional changesin order to fully implement the MOA-AD.

Paragraph 7 of the MOA-AD on Governance states thatprovisions therein which require amendments to the existinglegal framework shall come into force upon signing of theComprehensive Compact and upon effecting the necessarychanges to the legal framework. These “necessary changes”shall be undertaken “with due regard to non-derogation of prioragreements and within the stipulated timeframe to becontained in the Comprehensive Compact.”

The language of the aforesaid paragraph 7 on Governance,in relation to paragraph 2(d) on Territory, indicates that the GRPpanel committed itself to cause the necessary changes to thelegal framework within a stipulated timeframe for the MOA-AD to become effective. Paragraph 2(d) on Territory reads:

2. Toward this end, the Parties enter into the followingstipulations:

x x x x

d. Without derogating from the requirements of prioragreements, the Government stipulates to conduct anddeliver, using all possible legal measures, within 12

22 Paragraph 2.e, Resources states that the BJE shall have the power:

e. To enact agrarian laws and programs suitable to the specialcircumstances of the Bangsamoro people prevailing in theirancestral lands within the established territorial boundariesof the Bangsamoro homeland and ancestral territory withinthe competence of the BJE; x x x


months following the signing of the MOA-AD, a plebiscitecovering the areas as enumerated in the list and depictedin the map as Category A attached herein (the Annex). TheAnnex constitutes an integral part of this frameworkagreement. Toward this end, the Parties shall endeavor tocomplete the negotiations and resolve all outstandingissues on the Comprehensive Compact within 15 monthsfrom the signing of the MOA-AD.

Pursuant to the above, the GRP panel bound itself to“complete the negotiations and resolve all outstanding issueson the Comprehensive Compact within 15 months from thesigning of the MOA-AD.” On the other hand, it is explicitlyprovided in paragraph 7 on Governance that the ComprehensiveCompact shall contain a stipulated timeframe within which toeffect the necessary changes to the legal framework. In otherwords, the GRP panel undertook to change the legal frameworkwithin a contemplated period to be agreed upon within 15months from the signing of the MOA-AD.

It should also be noted that, in accordance with paragraph 2(a)23 on Territory, the GRP panel committed itself “to the fulland mutual implementation of this framework agreement onterritory.” To fully realize the MOA-AD stipulations on territory,it would be necessary to effect both statutory and constitutionalamendments as well as complete negotiations on theComprehensive Compact. The plebiscite envisioned underparagraph 2 (c) on Territory, for instance, would require notonly an amendment of the ARMM Organic Acts, but also aconstitutional amendment that would allow for the verycreation of the BJE. Thus, the full implementation of the territoryprovisions of the MOA-AD presupposes changes in the legalframework, which the GRP panel guaranteed under paragraph7 on Governance.

23 Paragraph 2.a, Territory states:

a. The GRP and MILF as the Parties to this Agreement committhemselves to the full and mutual implementation of thisframework agreement on territory with the aim of resolvingoutstanding issues that emanate from the consensus pointson Ancestral Domain.


Additionally, paragraph 7 on Governance provides thatnecessary changes to the legal framework shall likewise beeffected “with due regard to non-derogation of prioragreements.” This can only mean that any change to the legalframework should not diminish or detract from agreementspreviously entered into by the parties. It also implies thatprovisions of prior agreements are already final and binding, asthese serve as take-off points for the necessary changes thatwill be effected to fully implement the MOA-AD.

In my opinion, the MOA-AD is intended to be includedamong the prior agreements whose terms cannot be decreasedby any of the changes that are necessary for it to come intoforce. More specifically, by the time the ComprehensiveCompact shall have prescribed the timeframe for effectingthese changes, the MOA-AD shall have become a prioragreement that is subject to the non-derogation clause foundin paragraph 7 on Governance. This signifies that any change inthe legal framework should adapt to the terms of the MOA-AD.The latter becomes the parameter of any statutory orconstitutional amendments which are necessary to make theMOA-AD effective.

As such, it cannot be denied that the GRP panel committeditself to the full implementation of the MOA-AD by effectingchanges to the legal framework. Respondents cannot deny thisby saying that the parties further undertook to negotiate aComprehensive Compact or a final peace agreement. Althoughit may be conceded that the parties have yet to enter into aComprehensive Compact subsequent to the signing of the MOA-AD, the nature of this compact shows that the MOA-AD wasintended as the controlling document for the essential termsof the Comprehensive Compact. Paragraphs 3 and 7 of the MOA-AD provisions on Governance invariably describe theComprehensive Compact as merely embodying details for theeffective enforcement and actual implementation of the MOA-AD. Thus, the Comprehensive Compact will simply lay downthe particulars of the parties’ final commitments, as expressedin the assailed agreement.

Consequently, paragraph 7 on Governance in relation toparagraph 2(a) on Territory contradict respondents’ assertion


that the MOA-AD is merely a preparatory agreement devoid ofany real effects. The language employed in these provisions donot support respondents’ contention that the MOA-AD is just areference for future negotiations or consists of mere proposalsthat are subject to renegotiation. The words used in theseprovisions are categorical in stating that the GRP panelcommitted itself to the full implementation of the MOA-AD byeffecting changes to the legal framework within a stipulatedtimeframe. In other words, these are definite propositions thatwould have to be undertaken under the agreement of theparties.

The foregoing discussion demonstrates that the MOA-AD isnot merely a draft of consensus points that is subject to furthernegotiations between the GRP panel and the MILF. The languageof the MOA-AD shows that the GRP panel made a real and actualcommitment to fully implement the MOA-AD by effecting thenecessary amendments to existing laws and the Constitution.The GRP panel’s obligation to fully implement the provisionson Territory and to effect these “necessary changes” is in itselfnot dependent on any statutory or constitutional amendment.It is only subject to a timeframe that will be specified in theComprehensive Compact, per stipulation of the parties.

At this point, it is worth noting that the MOA-AD cannoteven be subjected to subsequent legal processes, such as aplebiscite or statutory and constitutional amendments. TheMOA-AD cannot be validated by any of these means consideringthat the GRP panel does not even have the power to make theselegal processes occur. This is because the panel is not authorizedto commit to statutory and constitutional changes to fullyimplement the MOA-AD. Thus, it is not legally possible toundertake these legal processes under the circumstancesprovided in the agreement.

To emphasize, the GRP panel had neither power norauthority to commit the government to statutory andconstitutional changes. The power to amend laws and to causeamendments or revisions to the Constitution belongs toCongress and, to a certain extent, the people under a system ofinitiative and referendum. Only Congress and the people havethe competence to effect statutory and constitutional changes


in the appropriate manner provided by law. The GRP panel, as amere organ of the Executive branch, does not possess any suchprerogative.

In the matter of legislation, it is settled that the power ofCongress under Article VI, Section 124 of the Constitution isplenary and all-encompassing. The legislature alonedetermines when to propose or amend laws, what laws topropose or amend, and the proper circumstances under whichlaws are proposed or amended. As held in Ople v. Torres:25

x x x Legislative power is “the authority, under the Constitution,to make laws, and to alter and repeal them.” The Constitution,as the will of the people in their original, sovereign andunlimited capacity, has vested this power in the Congress ofthe Philippines. The grant of legislative power to Congress isbroad, general and comprehensive. The legislative bodypossesses plenary power for all purposes of civil government.

Similarly, the power to amend or revise the Constitutionalso pertains to Congress in the exercise of its constituentfunctions. The same power is also reserved to the people undera system of initiative, pursuant to Article XVII26 of theConstitution. In Lambino v. COMELEC,27 the Court stated that24 ART. VI, SECTION 1. The legislative power shall be vested in the Congress

of the Philippines which shall consist of a Senate and a House ofRepresentatives, except to the extent reserved to the people by theprovision on initiative and referendum.

25 354 Phil. 948, 966 (1998).26 ART. XVII – Amendments or Revisions

SECTION 1. Any amendment to, or revision of, this Constitution maybe 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 directlyproposed by the people through initiative x x x.

27 G.R. No. 174153, October 25, 2006, 505 SCRA 160, 247.


there are three modes of amending the Constitution underArticle XVII. The first mode is through Congress, acting as aconstituent assembly, upon three-fourth’s vote of all itsMembers; the second mode is through a constitutionalconvention created under a law passed by Congress; and thethird mode is through a people’s initiative. Nowhere in theConstitution does it state that the Executive or any of its organscan effect constitutional changes, as assumed by the GRP panelunder the MOA-AD.

Notwithstanding the apparent lack of power or authority,the GRP panel undertook to effect changes to the Constitutionand to statutes in order to fully implement the MOA-AD. Indoing so, the GRP panel pre-empted Congress by determining,firsthand, the wisdom of effecting these changes as well as thenature of the required amendments to laws and theConstitution. It encroached upon the exclusive prerogative ofCongress by assuming to exercise a discretion that it did notpossess. It thus exceeded its authority and acted withoutjurisdiction.

It should have been evident to the GRP panel that it couldnot bargain away laws enacted by Congress or the people’ssovereign will as expressed in the Constitution. Apart from thefact that it had no power to do so, its acts were in clear disregardof the instructions of the President as stated in theMemorandum of Instructions From the President dated March1, 2001. The President clearly directed therein that “(t)henegotiations shall be conducted in accordance with themandates of the Philippine Constitution, the Rule of Law, andthe principles of sovereignty and territorial integrity of theRepublic of the Philippines.” The GRP panel did otherwise andfailed to act in accordance with this directive.

The GRP panel derives its authority from the Chief Executive,whose sworn duty is to faithfully execute the laws and upholdthe Constitution. In negotiating the terms of the MOA-AD,however, the GRP panel violated our Constitution and our lawsby subscribing to stipulations that could very well lead to theiremasculation. The GRP panel agreed to illegal andunconstitutional concessions and guaranteed the performanceof a prestation that it could not deliver. This constitutes


manifest grave abuse of discretion amounting to lack or excessof jurisdiction.

It is beyond question that the MOA-AD is patentlyunconstitutional. Had it been signed by the parties, it wouldhave bound the government to the creation of a separateBangsamoro state having its own territory, government, civilinstitutions and armed forces. The concessions that respondentsmade to the MILF would have given the latter leverage todemand that the Bangsamoro homeland be recognized as a statebefore international bodies. It could insist that the MOA-AD isin fact a treaty and justify compliance with its provisions, underthe international law principle of pacta sunt servanda. Thesovereignty and territorial integrity of the Philippines wouldhave been compromised.

For these reasons, I vote to grant the petitions.Respondents must be prohibited and permanently enjoinedfrom negotiating, executing and entering into a peaceagreement with terms similar to the MOA-AD. Althoughrespondents have manifested that the MOA-AD will not besigned “in its present form or in any other form,” the agreementmust nonetheless be declared unconstitutional and, therefore,void ab initio, to remove any doubts regarding its binding effecton the Republic. Under no circumstance could the MOA-ADacquire legitimacy and force against the entire nation, and noless than a categorical declaration to this effect should put theissue to rest.

I so vote.

193PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION


Carpio, J.:

If this Court did not stop the signing of the Memorandum ofAgreement on Ancestral Domain (MOA-AD), this country wouldhave been dismembered because the Executive branch wouldhave committed to amend the Constitution to conform to theMOA-AD. The MOA-AD gives to the Bangsamoro Juridical Entity(BJE) the attributes of a state, with its own people, territory,government, armed forces, foreign trade missions, and all otherinstitutions of a state,1 under the BJE’s own basic law orconstitution.2

USURPATION OF THE POWERS OF CONGRESS AND THE PEOPLE

The initialed MOA-AD between the Government of the Republicof the Philippines (GRP) and the Moro Islamic Liberation Front(MILF) is patently unconstitutional. The Executive branch’scommitment under the MOA-AD to amend the Constitution toconform to the MOA-AD violates Sections 1 and 4, Article XVII

1 Paragraph 8 on Governance of the MOA-AD provides: “The Partiesagree that the BJE shall be empowered to build, develop andmaintain its own institutions, inclusive of, civil service, electoral,financial and banking, education, legislation, legal, economic, andpolice and internal security force, judicial system and correctionalinstitutions, necessary for developing a progressive Bangsamorosociety the details of which shall be discussed in the negotiationof the Comprehensive Compact.” (Emphasis supplied)

2 Paragraph 6 on Governance of the MOA-AD provides: “Themodalities for the governance intended to settle the outstandingnegotiated political issues are deferred after the signing of theMOA-AD.

The establishment of institutions for governance in aComprehensive Compact, together with its modalities during thetransition period, shall be fully entrenched and established in thebasic law of the BJE. The Parties shall faithfully comply with theircommitment to the associative arrangements upon entry into forceof a Comprehensive Compact.” (Emphasis supplied)


of the Constitution. The Executive branch usurps the solediscretionary power of Congress to propose amendments tothe Constitution as well as the exclusive power of the sovereignpeople to approve or disapprove such proposed amendments.Sections 1 and 4, Article XVII of the Constitution provide:

SECTION 1. Any amendment to, or revision of, this Constitutionmay be proposed by:

(1) The Congress, upon a vote of three-fourths of all itsMembers; or

(2) A constitutional convention.

SEC. 4. Any amendment to, or revision of, this Constitution underSection 1 hereof shall be valid when ratified by a majority ofthe votes cast in a plebiscite which shall be held not earlierthan sixty days nor later than ninety days after the approvalof such amendment or revision.

Indisputably, the Executive branch has no power to committo the MILF that the Constitution shall be amended to conformto the MOA-AD. Such commitment is a grave abuse of discretionamounting to lack or excess of jurisdiction.3

The MOA-AD states, in paragraph 2(a) on Territory, that “theParties to this Agreement commit themselves to the full andmutual implementation of this framework agreement.” TheMOA-AD further states, in paragraph 7 on Governance, that:

Any provisions of the MOA on Ancestral Domain requiringamendments to the existing legal framework shall come intoforce upon signing of a comprehensive compact and upon

3 Section 1, Article VIII of the Constitution provides: “The judicialpower shall be vested in one Supreme Court and in such lowercourts as may be established by law.

Judicial power includes the duty of the courts of justice to settleactual controversies involving rights which are legally demandableand enforceable, and to determine whether or not there has been agrave abuse of discretion amounting to lack or excess ofjurisdiction on the part of any branch or instrumentality of theGovernment.”


effecting the necessary changes to the legal framework withdue regard to non derogation of prior agreements and withinthe stipulated timeframe to be contained in the ComprehensiveCompact. (Emphasis supplied)

The Executive branch commits to implement fully the MOA-AD by amending the “existing legal framework,” impliedlyreferring to the Constitution. The Executive branch furthercommits that such constitutional amendments shall notderogate from prior GRP-MILF agreements. At the time of theconstitutional amendments, the MOA-AD will be a prioragreement, along with several other GRP-MILF agreements.4

The phrase “due regard to non-derogation of prioragreements” means there shall be no deviation from previousGRP-MILF agreements. The word “due” means a right tosomething, as in something that is “due” a person. This is thesame usage of the word “due” in the phrase “due process oflaw,” which means one’s right to legal process. The word“regard” means attention or observance. “Non-derogation”means no deviation. Thus, “due regard to non-derogation ofprior agreements” simply means observance of what the MILFis entitled under previous GRP-MILF agreements, to which thereshall be no deviation.

The phrase “due regard” means mandatory observance andnot discretionary observance. When one speaks of “due regardfor the law,” one intends mandatory observance of the law. Thesame is true for “due regard to non-derogation of prioragreements,” which means mandatory observance of non-derogation of previous agreements. The followingpronouncements of the Court reveal the mandatory nature ofthe phrase “due regard”:

4 Some of these agreements are mentioned in the Terms of Referenceof the MOA-AD. In their Compliance dated September 22, 2008,respondents included the following agreements not mentioned inthe Terms of Reference: (1) Implementing Guidelines on theHumanitarian, Rehabilitation and Development Aspects of the GRP-MILF Tripoli Agreement on Peace of 2001 dated May 7, 2002; and(2) Implementing Guidelines on the Security Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 dated August 7, 2001.


The least this Court can do under the circumstances is to makeclear to all and sundry, especially to members of police forces,that the authority conferred on them to maintain peace andorder should be exercised with due regard to the constitutionalrights, most especially so of those who belong to the lower-income groups. If in a case like the present, the full force of thepenal statute is not felt by the perpetrator of the misdeed, thenthe law itself stands condemned. This we should not allow tohappen.5 (Emphasis supplied)

Entrapment is allowed when it is undertaken with due regardto constitutional and legal safeguards. It has repeatedly beenaccepted as a valid means of arresting violators of theDangerous Drugs Law.6 (Emphasis supplied)

The phrase “due regard” is commonly found in internationaltreaties and conventions, like the United Nations Conventionon the Law of the Sea (UNCLOS) where the phrase appears atleast 16 times. The phrase “due regard” as used in UNCLOS isexplained as follows:

[T]he requirement of “due regard” is a qualification of therights of States in exercising the freedoms of the high seas.The standard of “due regard” requires all States, in exercisingtheir high seas freedoms, to be aware of and consider theinterests of other States in using the high seas, and to refrainfrom activities that interfere with the exercise by other Statesof the freedom of the high seas. As the ILC [which prepareddrafts of the 1958 LOS Conventions], stated in its Commentaryin 1956, “States are bound to refrain from any acts that mightadversely affect the use of the high seas by nationals of otherStates.” The construction in paragraph 2 recognizes that allStates have the right to exercise high seas freedoms, andbalances consideration for the rights and interests of all statesin this regard.7 (Emphasis supplied)

5 People v. Gumahin, 128 Phil. 728, 757 (1967).6 People v. Padasin, 445 Phil. 448, 455 (2003).7 George K. Walker, DEFINING TERMS IN THE 1982 LAW OF THE SEA CONVENTION IV:

THE LAST ROUND OF DEFINITIONS PROPOSED BY THE INTERNATIONAL LAW ASSOCIATION

(AMERICAN BRANCH) LAW OF THE SEA COMMITTEE, California Western


The phrase “due regard,” as used in the Convention onInternational Civil Aviation, is understood as giving rise to “aduty of ‘due regard’ upon operators of state aircraft, and thus,upon military aircraft, for the safety of the navigation of civilaircraft.”8 Thus, “the ‘due regard’ rule remains the principaltreaty obligation imposed upon States for the regulation of theflight of military aircraft applicable during times of peace andarmed conflict.”9

The Chairman of the MILF and its highest-ranking official,Al Haj Murad Ebrahim, candidly admitted that the MILF’sunderstanding is that the Constitution shall be amended toconform to the MOA-AD. In an ABS-CBN television interviewaired nationwide on August 20, 2008, and widely reported inthe newspapers, MILF Chairman Murad stated:

It may be beyond the Constitution but the Constitution canbe amended and revised to accommodate the agreement. Whatis important is during the amendment, it will not derogate orwater down the agreement because we have worked this outfor more than 10 years now.10 (Emphasis supplied)

During the oral arguments, Atty. Sedfrey Candelaria,principal counsel to the GRP Panel, when asked about thisstatement, did not dispute that MILF Chairman Murad madethe statement. Atty. Candelaria simply told the Court that MILFChairman Murad “did not sit in the negotiating table.”11

International Law Journal, Fall 2005, citing the Commentary ofJohn E. Noyes in the Consolidated Glossary of Technical TermsUsed in the United Nations Convention on the Law of the Sea,published by the International Hydrographic Organization (IHO)Technical Aspects of the Law of the Sea Working Group.

8 Michel Bourbonniere and Louis Haeck, MILITARY AIRCRAFT AND INTERNATIONAL

LAW: CHICAGO OPUS 3, Journal of Air Law and Commerce, Summer2001.

9 Id.10 <http://222.abs-cbnnews.com/topftthehour.aspx?StoryId=128834>11 TSN, August 29, 2008, pp. 190–191 and 239.


Clearly, under the MOA-AD, the Executive branch assumesthe mandatory obligation to amend the Constitution to conformto the MOA-AD. During the oral arguments, Atty. SedfreyCandelaria admitted that the implementation of the MOA-ADrequires “drastic changes” to the Constitution.12 As directed byJustice Antonio T. Carpio, Atty. Candelaria undertook to submitto the Court a listing of all provisions in the Constitution thatneeded amendment to conform to the MOA-AD.13 In theirMemorandum dated September 24, 2008, respondents stated:“In compliance with the said directive, the constitutionalprovisions that may be affected, as relayed by Atty. SedfreyCandelaria, are the following — Sections 1, 5, 18, 20 and 21 ofArticle X under Local Autonomy.”14 This listing is grosslyincomplete. A more thorough scrutiny shows that the “drasticchanges” are amendments to the following provisions of theConstitution:

1. Article 1 on the National Territory.15 During the oralarguments, Atty. Sedfrey Candelaria stated that thisprovision would have to be amended to conform to theMOA-AD.16

12 Id. at 297.13 Id. at 296–298.14 Memorandum of Respondents dated September 24, 2008, p. 56.15 Article I on the Constitution provides: “The national territory

comprises the Philippine archipelago, with all the islands andwaters embraced therein, and all other territories over which thePhilippines has sovereignty or jurisdiction, consisting of itsterrestrial, fluvial, and aerial domains, including its territorialsea, the seabed, the subsoil, the insular shelves, and othersubmarine areas. The waters around, between, and connecting theislands of the archipelago, regardless of their breadth anddimensions, form part of the internal waters of the Philippines.”

16 TSN, August 29, 2008, p. 276.


2. Section 3, Article II on the role of the Armed Forces of thePhilippines as “protector of the people and the State.”17

Under the MOA-AD, the AFP’s role is only to defend the BJEagainst external aggression.18

3. Article III on the Bill of Rights. The MOA-AD does not statethat the Bill of Rights will apply to the BJE. The MOA-ADrefers only to “internationally recognized human rights

17 Section 3, Article II of the Constitution provides: “Civilian authorityis, at all times, supreme over the military. The Armed Forces of thePhilippines is the protector of the people and the State. Its goal isto secure the sovereignty of the State and the integrity of thenational territory.” (Emphasis supplied)

18 Paragraph 4 on Resources of the MOA-AD provides: “The BJE is freeto enter into any economic cooperation and trade relations withforeign countries: provided, however, that such relationships andunderstandings do not include aggression against the Governmentof the Republic of the Philippines; provided, further that it shallremain the duty and obligation of the Central Government to takecharge of external defense. Without prejudice to the right of theBangsamoro juridical entity to enter into agreement andenvironmental cooperation with any friendly country affecting itsjurisdiction, it shall include:

a. the option to establish and open Bangsamoro trade missionsin foreign countries with which it has economic cooperationagreements; and

b. the elements bearing in mind the mutual benefits derived fromPhilippine archipelagic status and security.

And, in furtherance thereto, the Central Government shall takenecessary steps to ensure the BJE’s participation in internationalmeetings and events, e.g. ASEAN meetings and other specializedagencies of the United Nations. This shall entitle the BJE’sparticipation in Philippine official missions and delegations that areengaged in the negotiation of border agreements or protocols forenvironmental protection, equitable sharing of incomes andrevenues, in the areas of sea, seabed and inland seas or bodies ofwater adjacent to or between islands forming part of the ancestraldomain, in addition to those of fishing rights.” (Emphasis supplied)


instruments”19 such as the United Nations UniversalDeclaration on Human Rights, International HumanitarianLaw, and the United Nations Declaration on the Rights ofIndigenous Peoples. No reference is made to the Bill ofRights or even to the Constitution.

4. Section 1, Article VI on the Legislative Department.20

Legislative power shall no longer be vested solely in theCongress of the Philippines. Under the MOA-AD, the BJEshall “build, develop and maintain its own institutions” 21

like a legislature whose laws are not subordinate to lawspassed by Congress.22

19 Paragraph 6 on Terms of Reference of the MOA-AD provides: “ILOConvention No. 169, in correlation to the UN Declaration on theRights of the Indigenous Peoples, and Republic Act No. 8371otherwise known as the Indigenous Peoples Rights Act of 1997, theUN Charter; the UN Universal Declaration on Human Rights,International Humanitarian Law (IHL), and internationally recognizedhuman rights instruments.” (Emphasis supplied)

20 Section 1, Article VI of the Constitution provides: “The legislativepower shall be vested in the Congress of the Philippines whichshall consist of a Senate and a House of Representatives, except tothe extent reserved to the people by the provision on initiative andreferendum.” (Emphasis supplied)

21 Paragraph 8 on Governance of the MOA-AD, see note 1.22 Section 20, Article X of the Constitution provides: “Within its

territorial jurisdiction and subject to the provisions of thisConstitution and national laws, the organic act of autonomousregions shall provide for legislative powers over:









5. Section 1, Article VII on executive power.23 Executive powershall no longer be vested exclusively in the President ofthe Philippines. The BJE shall have its own Chief Executivewho will not be under the supervision of the President.24

6. Section 16, Article VII on the President’s power to appointcertain officials, including military officers from the rankof colonel or naval captain, with the consent of theCommission on Appointments.25 All public officials in theBJE, including military officers of any rank in the BJEinternal security force, will be appointed in accordancewith the BJE’s own basic law or constitution.

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for thepromotion of the general welfare of the people of the region.(Emphasis supplied)

23 Section 1, Article VII of the Constitution provides: “The executivepower shall be vested in the President of the Philippines.”

24 Section 4, Article X of the Constitution provides: “The President ofthe Philippines shall exercise general supervision over localgovernments. Provinces with respect to component cities andmunicipalities, and cities and municipalities with respect tocomponent barangays shall ensure that the acts of their componentunits are within the scope of their prescribed powers andfunctions.” (Emphasis supplied)

25 Section 16, Article VII of the Constitution provides: “The Presidentshall nominate and, with the consent of the Commission onAppointments, appoint the heads of the executive departments,ambassadors, other public ministers and consuls, or officers ofthe armed forces from the rank of colonel or naval captain, andother officers whose appointments are vested in him in thisConstitution. He shall also appoint all other officers of theGovernment whose appointments are not otherwise provided forby law, and those whom he may be authorized by law to appoint.The Congress may, by law, vest the appointment of other officerslower in rank in the President alone, in the courts, or in the headsof departments, agencies, commissions, or boards.” (Emphasissupplied)


7. Section 17, Article VII on the President’s control over allexecutive departments.26 The President will not controlexecutive bureaus or offices in the BJE, like foreign trademissions of the BJE.

8. Section 18, Article VII on the President as “Commander-in-Chief of all armed forces of the Philippines.”27 Underthe MOA-AD, the President will not be the Commander-in-Chief of the BJE’s internal security force. The BJE’s internalsecurity force will not be part of the AFP chain of command.

9. Section 21, Article VII on the ratification of treaties andinternational agreements by the Senate.28 This will notapply to the BJE which, under the MOA-AD, has the powerto enter into economic and trade treaties with othercountries.29

10. Section 1, Article VIII on judicial power being vested inone Supreme Court.30 Since the BJE will have “its own x x xjudicial system,”31 the BJE will also have its own SupremeCourt.

26 Section 17, Article VII of the Constitution provides: “The Presidentshall have control of all the executive departments, bureaus, andoffices. He shall ensure that the laws be faithfully executed.”

27 Section 18, Article VII of the Constitution provides: “The Presidentshall be the Commander-in-Chief of all armed forces of thePhilippines and whenever it becomes necessary, he may call outsuch armed forces to prevent or suppress lawless violence, invasionor rebellion. x x x.” (Emphasis supplied)

28 Section 21, Article VII of the Constitution provides: “No treaty orinternational agreement shall be valid and effective unlessconcurred in by at least two-thirds of all the Members of the Senate.”

29 See note 18.30 Section 1, Article VIII of the Constitution provides: “The judicial

power shall be vested in one Supreme Court and in such lowercourts as may be established by law.”

31 See note 1.


11. Section 2, Article VIII on the power of Congress to defineand apportion the jurisdiction of lower courts.32 Underthe MOA-AD, Congress cannot prescribe the jurisdictionof BJE courts.

12. Section 5(2), Article VIII on the power of the Supreme Courtto review decisions of lower courts and to promulgaterules of pleadings and practice in all courts.33 Under theMOA-AD, the BJE will have its own judicial system.

32 Section 2 of Article VIII provides: “The Congress shall have thepower to define, prescribe, and apportion the jurisdiction of variouscourts but may not deprive the Supreme Court of its jurisdictionover cases enumerated in Section 5 hereof.

No law shall be passed reorganizing the Judiciary when itundermines the security of tenure of its Members.” (Emphasissupplied)

33 Section 5(2), Article VIII of the Constitution provides: “The SupremeCourt shall have the following powers:

(1) Exercise original jurisdiction over cases affectingambassadors, other public ministers and consuls, and overpetitions for certiorari, prohibition, mandamus, quo warranto,and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari,as the law or the Rules of Court may provide, final judgmentsand orders of lower courts in:

(a) All cases in which the constitutionality or validity of anytreaty, international or executive agreement, law,presidential decree, proclamation, order, instruction,ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost,assessment, or toll, or any penalty imposed in relationthereto.

(c) All cases in which the jurisdiction of any lower court is inissue.

(d) All criminal cases in which the penalty imposed isreclusion perpetua or higher.


Decisions of BJE courts are not reviewable by the SupremeCourt.

13. Section 5(6), Article VII on the power of the Supreme Courtto appoint all officials and employees in the Judiciary.34

This power will not apply to courts in the BJE.

14. Section 6, Article VIII on the Supreme Court’s administrativesupervision over all courts and their personnel.35 Underthe MOA-AD, the Supreme Court will not exerciseadministrative supervision over BJE courts and theirpersonnel.

(e) All cases in which only an error or question of law isinvolved.

(3) Assign temporarily judges of lower courts to other stations aspublic interest may require. Such temporary assignment shallnot exceed six months without the consent of the judgeconcerned.

(4) Order a change of venue or place of trial to avoid a miscarriageof justice.

(5) Promulgate rules concerning the protection and enforcementof constitutional rights, pleading, practice, and procedure in allcourts, the admission to the practice of law, the Integrated Bar,and legal assistance to the underprivileged. Such rules shallprovide a simplified and inexpensive procedure for the speedydisposition of cases, shall be uniform for all courts of thesame grade, and shall not diminish, increase, or modifysubstantive rights. Rules of procedure of special courts andquasi-judicial bodies shall remain effective unlessdisapproved by the Supreme Court.

(6) Appoint all officials and employees of the Judiciary in accordancewith the Civil Service Law.” (Emphasis supplied)

34 Id.35 Section 6, Article VIII of the Constitution provides: “The Supreme

Court shall have administrative supervision over all courts andthe personnel thereof.”


15. Section 9, Article VIII on the appointment by the Presidentof all judges in the Judiciary from nominees recommendedby the Judicial and Bar Council.36 This provision will notapply to courts in the BJE.

16. Section 11, Article VIII on the power of the Supreme Courtto discipline judges of all lower courts.37 This power willnot apply to judges in the BJE.

17. Section 1(1), Article IX-B on the power of the Civil ServiceCommission to administer the civil service.38 Under theMOA-AD, the BJE will have “its own x x x civil service”39 TheCivil Service Commission will have no jurisdiction overthe BJE’s civil service.

36 Section 9, Article VIII of the Constitution provides: “The Membersof the Supreme Court and judges of lower courts shall be appointedby the President from a list of at least three nominees prepared bythe Judicial and Bar Council for every vacancy. Such appointmentsneed no confirmation.

For the lower courts, the President shall issue the appointmentswithin 90 days from the submission of the list.” (Emphasis supplied)

37 Section 11, Article VIII of the Constitution provides: “The Membersof the Supreme Court and judges of lower courts shall hold officeduring good behavior until they reach the age of 70 years or becomeincapacitated to discharge the duties of their office. The SupremeCourt en banc shall have the power to discipline judges of lowercourts, or order their dismissal by a vote of a majority of the Memberswho actually took part in the deliberations on the issues in thecase and voted thereon.” (Emphasis supplied)

38 Section 1(1), Article IX-B of the Constitution provides: “The CivilService shall be administered by the Civil Service Commissioncomposed of a Chairman and two Commissioners who shall benatural-born citizens of the Philippines and, at the time of theirappointment, at least 35 years of age, with proven capacity forpublic administration, and must not have been candidates for anyelective position in the elections immediately preceding theirappointment.” (Emphasis supplied)

39 See note 1.


18. Section 2(1), Article IX-C on the power of the Commissionon Elections to enforce and administer all election laws.40

Under the MOA-AD, the BJE will have “its own x x x electoralsystem.”41 The Commission on Elections will have nojurisdiction over the BJE’s electoral system.

19. Section 2(1), Article IX-D on the power of the Commissionon Audit to examine and audit all subdivisions, agenciesand instrumentalities of the Government.42 Under the MOA-AD, the BJE can “build, develop and maintain its own

40 Section 2(1), Article IX-C of the Constitution provides: “TheCommission on Elections shall exercise the following powers andfunctions:

(1) Enforce and administer all laws and regulations relative to theconduct of an election, plebiscite, initiative, referendum, andrecall.” (Emphasis supplied)

41 See note 1.42 Section 2(1), Article IX-D of the Constitution provides: “The

Commission on Audit shall have the power, authority, and duty toexamine, audit, and settle all accounts pertaining to the revenueand receipts of, and expenditures or uses of funds and property,owned or held in trust by, or pertaining to, the Government, or anyof its subdivisions, agencies, or instrumentalities, includinggovernment-owned or controlled corporations with originalcharters, and on a post-audit basis: (a) constitutional bodies,commissions and offices that have been granted fiscal autonomyunder this Constitution; (b) autonomous state colleges anduniversities; (c) other government-owned or controlledcorporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly orindirectly, from or through the Government, which are required bylaw or the granting institution to submit to such audit as a conditionof subsidy or equity. However, where the internal control system ofthe audited agencies is inadequate, the Commission may adoptsuch measures, including temporary or special pre-audit, as arenecessary and appropriate to correct the deficiencies. It shall keepthe general accounts of the Government and, for such period asmay be provided by law, preserve the vouchers and othersupporting papers pertaining thereto.” (Emphasis supplied)


institutions”43 without limit. The BJE can create its ownaudit authority. The Commission on Audit will have nojurisdiction over the BJE or its subdivisions, agencies orinstrumentalities.

20. Section 1, Article X on the political subdivisions of thePhilippines.44 A new political subdivision for the BJE willhave to be created.

21. Section 4, Article X on the power of the President to exercisegeneral supervision over all local governments.45 Underthe MOA-AD, this provision will not apply to the BJE.

22. Section 5, Article X subjecting the taxing power of localgovernments to limitations prescribed by Congress.46

Under the MOA-AD, the BJE shall have “its own x x xlegislation.”47 The BJE’s taxing power will not be subject tolimitations imposed by national law.

43 See note 1.44 Section 1, Article X of the Constitution provides: “The territorial

and political subdivisions of the Republic of the Philippines arethe provinces, cities, municipalities, and barangays. There shallbe autonomous regions in Muslim Mindanao and the Cordillerasas hereinafter provided.”

45 Section 4, Article X of the Constitution provides: “The President ofthe Philippines shall exercise general supervision over localgovernments. Provinces with respect to component cities andmunicipalities, and cities and municipalities with respect tocomponent barangays shall ensure that the acts of their componentunits are within the scope of their prescribed powers andfunctions.” (Emphasis supplied)

46 Section 5, Article X of the Constitution provides: “Each localgovernment unit shall have the power to create its own sources ofrevenues and to levy taxes, fees, and charges subject to suchguidelines and limitations as the Congress may provide, consistentwith the basic policy of local autonomy. Such taxes, fees, and chargesshall accrue exclusively to the local governments.” (Emphasissupplied)

47 See note 1.


48 Section 6, Article X of the Constitution provides: “Local governmentunits shall have a just share, as determined by law, in the nationaltaxes which shall be automatically released to them.”

49 Section 10, Article X of the Constitution provides: “No province,city, municipality, or barangay may be created, divided, merged,abolished, or its boundary substantially altered, except inaccordance with the criteria established in the Local GovernmentCode and subject to approval by a majority of the votes cast in aplebiscite in the political units directly affected.” (Emphasis supplied)

50 Paragraph 2(d) on Territory of the MOA-AD provides. “Withoutderogating from the requirements of prior agreements, theGovernment stipulates to conduct and deliver, using all possiblelegal measures, within 12 months following the signing of the MOA-AD, a plebiscite covering the areas enumerated in the list anddepicted in the map as Category A attached herein (the “Annex”).”(Emphasis supplied)

51 Section 15, Article X of the Constitution provides: “There shall becreated autonomous regions in Muslim Mindanao and in theCordilleras consisting of provinces, cities, municipalities, and

23. Section 6, Article X on the “just share” of local governmentunits in national taxes.48 Since the BJE is in realityindependent from the national government, this provisionwill have to be revised to reflect the independent status ofthe BJE and its component cities, municipalities andbarangays vis-à-vis other local government units.

24. Section 10, Article X on the alteration of boundaries oflocal government units, which requires a plebiscite “inthe political units affected.”49 Under paragraph 2(d) onTerritory of the MOA-AD,50 the plebiscite is only in thebarangays and municipalities identified as expansionareas of the BJE. There will be no plebiscite “in the politicalunits affected,” which should include all the barangayswithin a city, and all municipalities within a province.

25. Section 15, Article X on the creation of autonomous regionswithin the framework of the Constitution, nationalsovereignty and territorial integrity of the Philippines.51

This will have to be revised since under the MOA-AD theBJE has all the attributes of a state.


geographical areas sharing common and distinctive historical andcultural heritage, economic and social structures, and otherrelevant characteristics within the framework of this Constitutionand the national sovereignty as well as territorial integrity of theRepublic of the Philippines.” (Emphasis supplied)

52 Section 16, Article X of the Constitution provides: “The Presidentshall exercise general supervision over autonomous regions toensure that the laws are faithfully executed.”

53 Section 17, Article X of the Constitution provides: “All powers,functions, and responsibilities not granted by this Constitution orby law to the autonomous regions shall be vested in the NationalGovernment.”

54 Section 18, Article X of the Constitution provides: “The Congressshall enact an organic act for each autonomous region with theassistance and participation of the regional consultativecommission composed of representatives appointed by thePresident from a list of nominees from multisectoral bodies. Theorganic act shall define the basic structure of government for theregion consisting of the executive department and legislativeassembly, both of which shall be elective and representative of theconstituent political units. The organic acts shall likewise providefor special courts with personal, family, and property law jurisdictionconsistent with the provisions of this Constitution and nationallaws.

The creation of the autonomous region shall be effective whenapproved by majority of the votes cast by the constituent units in a

26. Section 16, Article X on the President’s power to exercisegeneral supervision over autonomous regions.52 Thisprovision will not apply to the BJE, which is totallyindependent from the President’s supervision.

27. Section 17, Article X which vests in the NationalGovernment residual powers, or those powers which arenot granted by the Constitution or laws to autonomousregions.53 This will not apply to the BJE.

28. Section 18, Article X which requires that personal, familyand property laws of autonomous regions shall beconsistent with the Constitution and national laws.54 This


plebiscite called for the purpose, provided that only provinces,cities, and geographic areas voting favorably in such plebisciteshall be included in the autonomous region.”

55 See note 2.56 See note 22.57 Section 21, Article X of the Constitution provides: “The preservation

of peace and order within the regions shall be the responsibility ofthe local police agencies which shall be organized, maintained,supervised, and utilized in accordance with applicable laws. Thedefense and security of the regions shall be the responsibility ofthe National Government.” (Emphasis supplied)

58 See note 1.59 Section 2, paragraph 1, Article XII of the Constitution provides: “All

lands of the public domain, waters, minerals, coal, petroleum, andother mineral oils, all forces of potential energy, fisheries, forestsor timber, wildlife, flora and fauna, and other natural resourcesare 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 underthe full control and supervision of the State. The State may directlyundertake such activities, or it may enter into co-production, jointventure, or production-sharing agreements with Filipino citizens,

will not apply to the BJE which will have its own basic lawor constitution.55

29. Section 20, Article X on the legislative powers ofautonomous regional assemblies whose laws are subjectto the Constitution and national laws.56 This provisionwill not apply to the BJE.

30. Section 21, Article X on the preservation of peace andorder within autonomous regions by the local police asprovided in national laws.57 Under the MOA-AD, the BJEshall have “its own x x x police”58 to preserve peace andorder within the BJE.

31. Section 2, Article XII on State ownership of all lands of thepublic domain and of all natural resources in thePhilippines.59 Under paragraph 3 on Concepts and


or corporations or associations at least 60 percent of whose capitalis owned by such citizens. Such agreements may be for a period notexceeding 25 years, renewable for not more than 25 years, andunder such terms and conditions as may be provided by law. Incases of water rights for irrigation, water supply, fisheries, orindustrial uses other than the development of water power,beneficial use may be the measure and limit of the grant.” (Emphasissupplied)

60 Paragraph 3 on Concepts and Principles of the MOA-AD provides:“Both Parties acknowledge that ancestral domain does not formpart of the public domain but encompasses ancestral, communal,and customary lands, maritime, fluvial and alluvial domains aswell as all natural resources therein that have inured or vestedancestral rights on the basis of native title. Ancestral domain andancestral land refer to those held under claim of ownership,occupied or possessed, by themselves or through the ancestors ofthe Bangsamoro people, communally or individually since timeimmemorial continuously to the present, except when preventedby war, civil disturbance, force majeure, or other forms of possibleusurpation or displacement by force, deceit, stealth, or as aconsequence of government project or any other voluntary dealingsentered into by the government and private individuals, corporateentities or institutions.” (Emphasis supplied)

61 Paragraph 1 on Concepts and Principles of the MOA-AD provides:“It is the birthright of all Moros and all Indigenous peoples ofMindanao to identify themselves and be accepted as “Bangsamoros.”The Bangsamoro people refers to those who are natives or original

Principles of the MOA-AD,60 ancestral domain, whichconsists of ancestral lands and the natural resources insuch lands, does not form part of the public domain. Theancestral domain of the Bangsamoro refers to land theyor their ancestors continuously possessed since timeimmemorial, excluding the period that their possessionwas disrupted by conquest, war, civil disturbance, forcemajeure, other forms of usurpation or displacement byforce, deceit or stealth, or as a consequence of governmentproject, or any voluntary dealings by the government andprivate parties. Under paragraph 1 on Concepts andPrinciples of the MOA-AD,61 the Bangsamoro people are


the Moros and all indigenous peoples of Mindanao, Suluand Palawan. Thus, the ancestral domain of theBangsamoro refers to the lands that all the peoples inMindanao, Sulu and Palawan possessed before the arrivalof the Spaniards in 1521. In short, the ancestral domain ofthe Bangsamoro refers to the entire Mindanao, Sulu andPalawan. This negates the Regalian doctrine in the 1935,1973 and 1987 Constitutions.

32. Section 9, Article XII on the establishment of anindependent economic and planning agency headed bythe President.62 This agency is the National Economic andDevelopment Authority. Under the MOA-AD, the BJE willhave its own economic planning agency.

33. Section 20, Article XII on the establishment of an independentmonetary authority, now the Bangko Sentral ng Pilipinas.63

inhabitants of Mindanao and its adjacent islands including Palawanand the Sulu archipelago at the time of conquest or colonization ofits descendants whether mixed or of full blood. Spouses and theirdescendants are classified as Bangsamoro. The freedom of choiceof the Indigenous people shall be respected.” (Emphasis supplied)

62 Section 9, Article XII of the Constitution provides: “The Congressmay establish an independent economic and planning agency headedby the President, which shall, after consultations with theappropriate public agencies, various private sectors, and localgovernment units, recommend to Congress, and implementcontinuing integrated and coordinated programs and policies fornational development.

Until the Congress provides otherwise, the National Economic andDevelopment Authority shall function as the independent planningagency of the government.” (Emphasis supplied)

63 Section 20, Article XII of the Constitution provides: “The Congressshall establish an independent central monetary authority, themembers of whose governing board must be natural-born Filipinocitizens, of known probity, integrity, and patriotism, the majorityof whom shall come from the private sector. They shall also besubject to such other qualifications and disabilities as may beprescribed by law. The authority shall provide policy direction in


the areas of money, banking, and credit. It shall have supervisionover the operations of banks and exercise such regulatory powersas may be provided by law over the operations of financecompanies and other institutions performing similar functions.

Until the Congress otherwise provides, the Central Bank of thePhilippines, operating under existing laws, shall function as thecentral monetary authority.” (Emphasis supplied)

64 See note 1.65 Section 4, Article XVI of the Constitution provides: “The Armed Forces

of the Philippines shall be composed of a citizen armed force whichshall undergo military training and serve, as may be provided bylaw. It shall keep a regular force necessary for the security of theState.” (Emphasis supplied)

66 See note 1.67 Section 5(6), Article XVI of the Constitution provides: “The officers

and men of the regular force of the armed forces shall be recruitedproportionately from all provinces and cities as far as practicable.”

Under the MOA-AD, the BJE will have its own financial andbanking authority.64

34. Section 4, Article XVI on the maintenance of “a regularforce necessary for the security of the State.”65 Thisprovision means there shall only be one “Armed Forces ofthe Philippines” under the command and control of thePresident. This provision will not apply to the BJE sinceunder the MOA-AD, the BJE shall have “its own x x x internalsecurity force”66 which will not be under the commandand control of the President.

35. Section 5(6), Article XVI on the composition of the armedforces, whose officers and men must be recruitedproportionately from all provinces and cities as far aspracticable.67 This will not apply to the BJE’s internalsecurity force whose personnel will come only from BJEareas.

36. Section 6, Article XVI on the establishment of one policeforce which shall be national in scope under theadministration and control of a national police


68 Section 6, Article XVI of the Constitution provides: “The State shallestablish and maintain one police force, which shall be national inscope and civilian in character, to be administered and controlledby a national police commission. The authority of local executivesover the police units in their jurisdiction shall be provided by law.”(Emphasis supplied)

69 See note 1.

commission.68 The BJE will have “its own x x x police”69

which is a regional police force not administered orcontrolled by the National Police Commission.

The Executive branch thus guarantees to the MILF that theConstitution shall be drastically overhauled to conform to theMOA-AD. The Executive branch completely disregards thatunder the Constitution the sole discretionary power to proposeamendments to the Constitution lies with Congress,and thepower to approve or disapprove such proposed amendmentsbelongs exclusively to the people.

The claim of respondents that the phrase “prioragreements” does not refer to the MOA-AD but to GRP-MILFagreements prior to the MOA-AD is immaterial. Whether theprior agreement is the MOA-AD or any other GRP-MILFagreement prior to the constitutional amendments, anycommitment by the Executive branch to amend the Constitutionwithout derogating from such prior GRP-MILF agreement wouldstill be unconstitutional for the same reason – usurpation bythe Executive branch of the exclusive discretionary powers ofCongress and the Filipino people to amend the Constitution.

VIOLATION OF CONSTITUTIONAL RIGHTS OF LUMADS

Under the MOA-AD, the Executive branch also commits toincorporate all the Lumads in Mindanao, who are non-Muslims,into the Bangsamoro people who are Muslims. There are 18distinct Lumad groups in Mindanao with their own ancestraldomains and their own indigenous customs, traditions andbeliefs. The Lumads have lived in Mindanao long before thearrival of Islam and Christianity. For centuries, the Lumads haveresisted Islam, a foreign religion like Christianity. To this day,


the Lumads proudly continue to practice their own indigenouscustoms, traditions and beliefs.

Suddenly, without the knowledge and consent of theLumads, the Executive branch has erased their identity asseparate and distinct indigenous peoples. The MOA-AD, inparagraph 1 on Concepts and Principles, provides:

It is the birthright of all Moros and all Indigenous peoples ofMindanao to identify themselves and be accepted as“Bangsamoros.” The Bangsamoro people refers to those whoare natives or original inhabitants of Mindanao and itsadjacent islands including Palawan and the Sulu archipelagoat the time of conquest or colonization and their descendantswhether mixed or of full native blood. Spouses and theirdescendants are classified as Bangsamoro. The freedom ofchoice of the indigenous people shall be respected. (Emphasissupplied)

The declaration that it is the “birthright of x x x all Indigenouspeoples of Mindanao to identify themselves and be acceptedas ‘Bangsamoros’” is cultural genocide. It erases by a meredeclaration the identities, culture, customs, traditions andbeliefs of 18 separate and distinct indigenous groups inMindanao. The “freedom of choice” given to the Lumads is anempty formality because officially from birth they are alreadyidentified as Bangsamoros. The Lumads may freely practice theirindigenous customs, traditions and beliefs, but they are stillidentified and known as Bangsamoros under the authority ofthe BJE.

The MOA-AD divests the Lumads of their ancestral domainsand hands over possession, ownership and jurisdiction of theirancestral domains to the BJE. In paragraphs 2, 3 and 6 onConcepts and Principles, the MOA-AD gives ownership over theBangsamoros’ ancestral domain to the Bangsamoro people,defines the ancestral domain of the Bangsamoros, and vestsjurisdiction and authority over such ancestral domain in theBJE, thus:

2. It is essential to lay the foundation of the Bangsamorohomeland in order to address the Bangsamoro people’shumanitarian and economic needs as well as their


political aspirations. Such territorial jurisdictions andgeographic areas being the natural wealth and patrimonyrepresent the social, cultural and political identity andpride of all the Bangsamoro people. Ownership of thehomeland is vested exclusively in them by virtue of theirprior rights of occupation that had inhered in them assizeable bodies of people, delimited by their ancestorssince time immemorial, and being the first politicallyorganized dominant occupants.

3. x x x Ancestral domain and ancestral land refer to thoseheld under claim of ownership, occupied or possessed, bythemselves or through the ancestors of the Bangsamoropeople, communally or individually x x x.

x x x x

6. Both Parties agree that the Bangsamoro Juridical Entity(BJE) shall have the authority and jurisdiction over theAncestral Domain and Ancestral lands, including bothalienable and non-alienable lands encompassed withintheir homeland and ancestral territory, as well as thedelineation of ancestral domains/lands of theBangsamoro people located therein. (Emphasis supplied)

After defining the Bangsamoro people to include all theLumads, the MOA-AD then defines the ancestral domain of theBangsamoro people as the ancestral domain of all theBangsamoros, which now includes the ancestral domains of allthe Lumads. The MOA-AD declares that exclusive ownershipover the Bangsamoro ancestral domain belongs to theBangsamoro people. The MOA-AD vests jurisdiction andauthority over the Bangsamoros’ ancestral domain in the BJE.Thus, the Lumads lost not only their separate identities butalso their ancestral domains to the Bangsamoros and the BJE.

The incorporation of the Lumads as Bangsamoros, and thetransfer of their ancestral domains to the BJE, without theLumads’ knowledge and consent,70 violate the Constitutional70 Philippine Daily Inquirer, August 27, 2008; see also

<http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20080827-157044/Respect-our-domain-lumad-tell-Moro-rebs>.


guarantee that the “State recognizes and promotes the rightsof indigenous cultural communities within the framework ofnational unity and development.”71 The incorporation alsoviolates the Constitutional guarantee that the “State, subjectto the provisions of this Constitution and national developmentpolicies and programs, shall protect the rights of indigenouscultural minorities to their ancestral lands to ensure theireconomic, social, and cultural well-being.”72

These Constitutional guarantees, as implemented in theIndigenous Peoples’ Rights Act of 1997, grant the Lumads “theright to participate fully, if they so chose, at all levels of decision-making in matters which may affect their rights, lives anddestinies.”73 Since the Executive branch kept the MOA-ADconfidential until its publication in the Philippine Daily Inquireron August 4, 2008, the day before its scheduled signing in KualaLumpur, Malaysia, there could have been no participation by

71 Section 22, Article II of the Constitution provides: “The Staterecognizes and promotes the rights of indigenous culturalcommunities within the framework of national unity anddevelopment.”

72 Section 5, Article XII of the Constitution provides: “The State, subjectto the provisions of this Constitution and national developmentpolicies and programs, shall protect the rights of indigenouscultural communities to their ancestral lands to ensure theireconomic, social, and cultural well-being.

The Congress may provide for the applicability of customary lawsgoverning property rights or relations in determining the ownershipand extent of ancestral domain.”

73 Section 16 of the Indigenous Peoples’ Rights Act of 1997 (RA No.8371) provides: “Right to Participate in Decision-Making. – ICCs/IPs have the right to participate fully, if they so choose, at all levelsof decision-making in matters which may affect their rights, livesand destinies through procedures determined by them as well as tomaintain and develop their own indigenous political structures.Consequently, the State shall ensure that the ICCs/IPs shall begiven mandatory representation in policy-making bodies and otherlocal legislative councils.” (Emphasis supplied)


the 18 Lumad groups of Mindanao in their incorporation intothe Bangsamoro. This alone shows that the Executive branchdid not consult, much less secure the consent, of the Lumadson their rights, lives and destinies under the MOA-AD. In fact,representatives of the 18 Lumad groups met in Cagayan de OroCity and announced on August 27, 2008, through their convenorTimuay Nanding Mudai, that “we cannot accept that we are partof the Bangsamoro.”74

The incorporation of the Lumads, and their ancestraldomains, into the Bangsamoro violates the Constitutional andlegislative guarantees recognizing and protecting the Lumads’distinct cultural identities as well as their ancestral domains.The violation of these guarantees makes the MOA-AD patentlyunconstitutional.

The incorporation of the Lumads, and their ancestraldomains, into the Bangsamoro without the Lumads’ knowledgeand consent also violates Article 8 of the United NationsDeclaration on the Rights of Indigenous Peoples.75 Section 8 ofthe Declaration states:

ARTICLE 8

1. Indigenous peoples and individuals have the right not tobe subjected to forced assimilation or destruction of theirculture.

2. States shall provide effective mechanisms for preventionof, and redress for:

(a) Any action which has the aim or effect of deprivingthem of their integrity as distinct peoples, or of theircultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessingthem of their lands, territories or resources;

74 See note 70; TSN, August 29, 2008, p. 183.75 Adopted overwhelmingly by the United Nations General Assembly

by a vote of 143–5 on September 13, 2007. Those who voted againstwere the United States, Canada, Australia and New Zealand.


(c) Any form of forced population transfer which has theaim or effect of violating or undermining any of theirrights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or inciteracial or ethnic discrimination directed against them.(Emphasis supplied)

The provisions of Article 8 were designed to prevent culturalgenocide of indigenous peoples. This will happen if the Lumadsare identified from birth as Bangsamoros and their ancestraldomains are absorbed into the ancestral domain of theBangsamoros.

There is another provision in the MOA-AD that could proveoppressive to the Lumads, and even invite conflicts withChristians. The MOA-AD, in paragraph 4 on Territory, empowersthe BJE to establish political subdivisions within the Bangsamoroancestral domain, as follows:

All territorial and geographic areas in Mindanao and itsadjacent islands including Palawan and the Sulu archipelagothat have been declared recognized, and/or delineated asancestral domain and ancestral land of the Bangsamoropeople as their geographical areas, inclusive of settlementsand reservations, may be formed or constituted into politicalsubdivisions of the Bangsamoro territorial jurisdictions subjectto the principles of equality of peoples and mutual respectand to the protection of civil, political, economic, and culturalrights in their respective jurisdictions.

Thus, the BJE can create political subdivisions – barangaysand municipalities – within the Bangsamoro ancestral domain.Under the MOA-AD, the Bangsamoro ancestral domain includesthe ancestral domains of the Lumads. The BJE can createbarangays and municipalities in areas that are presently theancestral domains of the Lumads. The BJE can station its policeand internal security force in these areas. Many of these areas– the present ancestral domains of the Lumads – are locatedwithin provinces, cities and municipalities where Christians arethe majority.


There are obvious possible adverse ramifications of thispower of the BJE to create political subdivisions withinprovinces, cities and municipalities outside of the BJE territory.The creation by the BJE of such political subdivisions will alterthe boundaries of the affected provinces, cities andmunicipalities, an alteration that, under the Constitution,requires an act of Congress and a plebiscite in the affectedpolitical units.76 The Executive branch must conduct widespreadconsultations not only with the Lumads, but also with theChristians who, under the MOA-AD, will be affected by thecreation of such BJE political subdivisions within their provinces,cities and municipalities.

PETITIONS PRESENT JUSTICIABLE CONTROVERSY

The claim of respondents that the MOA-AD, not having beensigned but merely initialed, does not give rise to an actualcontroversy cognizable by the Court, is gravely erroneous. TheMOA-AD has two features: (1) as an instrument of cession ofterritory and sovereignty to a new state, the BJE; and (2) as atreaty with the resulting BJE, governing the associativerelationship with the mother state,77 the Philippines, whoseonly important role in the relationship is “to take charge ofexternal defense.”78 Justice Vicente V. Mendoza, a formermember of this Court and a recognized authority onconstitutional law, states:

76 Section 10, Article X of the Constitution provides: “No province,city, municipality, or barangay may be created, divided, merged,abolished, or its boundary substantially altered, except inaccordance with the criteria established in the Local GovernmentCode and subject to approval by a majority of the votes cast in aplebiscite in the political units directly affected.” (Emphasissupplied)

77 Justice Vicente V. Mendoza (ret.), The Legal Significance of the MOAon the Bangsamoro Ancestral Domain, lecture delivered at theCollege of Law, University of the Philippines on September 5, 2008.

78 Paragraph 4 on Resources of the MOA-AD; see note 18.


It is indeed true that the BJE is not fully independent or sovereignand indeed it is dependent on the Philippine government forits external defense and only lacks foreign recognition, at leastat the present time. Nonetheless it is a state as the Philippineswas a state during the Commonwealth period, which was nota part of the territory of the United States although subject toits sovereignty. As a state, it was a signatory to several treatiesand international agreements, such as the Charter of theUnited Nations of January 1, 1942, and a participant in severalconferences such as that held in Bretton Woods, NewHampshire, on July 1–22, 1944, on the GATT. As the U.S. SupremeCourt noted in Hooven & Allison Co. v. Evatt, the adoption of the1935 Constitution prepared the way for the completeindependence of the Philippines and the government organizedunder it had been given, in many aspects, by the United States“the status of an independent government which has beenreflected in its relation as such with the outside world.”Similarly, the Supreme Court of the Philippines held in Laurelv. Misa that “the Commonwealth of the Philippines was asovereign government although not absolute.”79 (Emphasissupplied)

Thus, once the MOA-AD is signed, the MILF, as the acknowledgedrepresentative of the BJE, can exercise the rights of the BJE as astate.

The MILF, on behalf of the BJE, can then demand that thePhilippines comply, under the principle of pacta sunt servanda,with the express terms of the MOA-AD requiring the Philippinesto amend its Constitution to conform to the MOA-AD. Underthe 1969 Vienna Convention on the Law of Treaties, thePhilippines cannot invoke its internal law, including itsConstitution, as justification for non-compliance with the MOA-AD, which operates as a treaty between the GRP and the BJE.80

Thus, under international law, the Philippines is obligated to

79 See note 77.80 Article 27 of the 1969 Vienna Convention on the Law of Treaties

provides: “A party may not invoke the provisions of its internal lawas justification for its failure to perform a treaty.”


amend its Constitution to conform to the MOA-AD, whetherCongress or the Filipino people agree or not.

If this Court wants to prevent the dismemberment of thePhilippines, a dismemberment that violates the Constitution,the Court should not wait for the GRP Panel to sign the MOA-AD. Once the MOA-AD is signed, international law steps inresulting in irreversible consequences extremely damaging tothe sovereignty and territorial integrity of the Philippines. Nosubsequent ruling or order of this Court can undo this terribledamage, or put back a dismembered Philippines. The initialedMOA-AD already contains definitive and settled propositionsbetween the GRP and the MILF, and all that is lacking are thesignatures of the GRP and MILF representatives to make theMOA-AD a binding international agreement.81 Under thesecircumstances, the petitions certainly present an actualjusticiable controversy of transcendental importance to thenation.

The forum for the resolution of any dispute between theGRP and the MILF under a signed MOA-AD will not be this Courtbut the International Court of Justice (ICJ), which is not boundto respect the Philippine Constitution. The MILF, under thesponsorship of any member of the Organization of IslamicConference (OIC)82 that recognizes the compulsory jurisdictionof the ICJ,83 can bring the dispute to the ICJ. The OIC Special81 The initialing of the MOA-AD did not bind the GRP to the MOA-AD.

The initialing was merely intended by the parties to authenticatethe text of the MOA-AD. Article 12, 2(a) of the 1969 V iennaConvention on the Law of Treaties states that “the initialing of atext constitutes a signature of the treaty when it is established thatthe negotiating States so agreed.”

82 The Malaysia Foreign Minister, the Special Adviser to the MalaysianPrime Minister, and the Secretary of Foreign Affairs of thePhilippines are witnesses to the MOA-AD.

83 The Philippines, as a member of the United Nations, is ipso facto aparty to the Statute of the International Court of Justice (Article93[1], United Nations Charter). The Philippines signed on January18, 1972 the Declaration Recognizing the Jurisdiction of the ICJ asCompulsory. At least 10 members of the Organization of IslamicConference have also signed the Declaration.


Envoy for the Peace Process in Southern Philippines,Ambassador Sayed Elmasry, who is also the Secretary-Generalof the OIC, is a signatory to the MOA-AD. Above the spacereserved for his signature are the words “ENDORSED BY.”

A party to the Statute of the ICJ, like the Philippines, isbound by the ICJ’s determination whether the ICJ has jurisdictionover a dispute.84 In deciding the issue of jurisdiction, the ICJmay or may not follow past precedents in the light of specialcircumstances of the case before it. The Philippines will berisking dismemberment of the Republic in the hands of aninternational tribunal that is not bound by the PhilippineConstitution.

More importantly, the BJE, represented by the MILF andendorsed by the OIC, may apply to be a party to the Statute ofthe ICJ and accept the compulsory jurisdiction of the ICJ.85 AState that recognizes the compulsory jurisdiction of the ICJ hasthe right to sue before the ICJ any State that has accepted thesame compulsory jurisdiction of the ICJ.86 The fact that the BJE84 Article 36(6) of the Statute of the ICJ provides: “In the event of a

dispute as to whether the Court has jurisdiction, the matter shallbe settled by the decision of the Court.”

85 Article 93(2) of the Charter of the United Nations provides: “A statewhich is not a Member of the United Nations may become a partyto the Statute of the International Court of Justice on conditions tobe determined in each case by the General Assembly upon therecommendation of the Security Council.”

86 Article 36(2) of the Statute of the International Court of Justiceprovides:

ARTICLE 36

1. x x x

2. The states parties to the present Statute may at any time declarethat they recognize as compulsory ipso facto and withoutspecial agreement, in relation to any other state accepting thesame obligation, the jurisdiction of the Court in all legaldisputes concerning:

a. the interpretation of a treaty;

b. any question of international law;


has all the attributes of a state, with the acknowledged powerto enter into international treaties with foreign countries, givesthe BJE the status and legal personality to be a party to a casebefore the ICJ.87 In fact, by agreeing in the MOA-AD that theBJE, on its own, can enter into international treaties,88 thePhilippines admits and recognizes the international legalpersonality of the BJE, with the capacity to sue and be sued ininternational tribunals.

In short, for this Court to wait for the signing of the MOA-AD before assuming jurisdiction will allow an internationaltribunal to assume jurisdiction over the present petitions,risking the dismemberment of the Republic.

It is providential for the Filipino people that this Court issuedthe Temporary Restraining Order enjoining the signing of theMOA-AD in the nick of time on August 4, 2008. When the Courtissued the TRO, the members of the GRP Panel were already ontheir way to Malaysia to sign the MOA-AD the following day,August 5, 2008, before representatives of numerous states fromthe OIC, Europe, North America, ASEAN and other parts of Asia.Indeed, public respondents should be thankful to this Court forsaving them from inflicting an ignominious and irreversiblecatastrophe to the nation.

PETITIONS NOT MOOTED

The claim of respondents that the present petitions are mootbecause during the pendency of this case the President decidednot to sign the MOA-AD, “in its present form or in any otherform,”89 is erroneous. Once the Court acquires jurisdiction over

c. the existence of any fact which, if established, wouldconstitute a breach of an international obligation;

d. the nature or extent of the reparation to be made for thebreach of an international obligation.

87 Article 34(1) of the Statute of the ICJ provides: “Only states may beparties in cases before the Court.”

88 See note 18.89 Memorandum of Respondents dated September 24, 2008, p. 7.


a case, its jurisdiction continues until final termination of thecase.90 The claim of respondents that the President neverauthorized the GRP Panel to sign the MOA-AD91 is immaterial.If the GRP Panel had no such authority, then their acts in initialingand in intending to sign the MOA-AD were in grave abuse ofdiscretion amounting to lack or excess of jurisdiction, vestingthis Court jurisdiction over the present petitions to declareunconstitutional such acts of the GRP Panel.

Needless to say, the claim that the GRP Panel had noauthority to sign the MOA-AD is a grave indictment of themembers of the GRP Panel. At the very least this shows that themembers of the GRP Panel were acting on their own, withoutfollowing the instructions from the President as clearly laiddown in the Memorandum of Instructions from the Presidentdated March 1, 2001, which states in part:

This Memorandum prescribes the guidelines for theGovernment Negotiating Panel (GPNP) for the peace negotiationprocess with the Moro Islamic Liberation Front (MILF):

1. The negotiations shall be conducted in accordance withthe mandates of the Philippine Constitution, the Rule ofLaw, and the principles of the sovereignty and territorialintegrity of the Republic of the Philippines.

2. The negotiation process shall be pursued in line with thenational Comprehensive Peace Process, and shall seek aprincipled and peaceful resolution of the armed conflict,with neither blame nor surrender, but with dignity for allconcerned.

3. The objective of the GPNP is to attain a peace settlementthat shall:

a. Contribute to the resolution of the root cause of thearmed conflict, and to societal reform, particularlyin Southern Philippines;

b. Help attain a lasting peace and comprehensivestability in Southern Philippines under a meaningful

90 People v. Vera, G.R. No. 26539, February 28, 1990, 182 SCRA 800,809.

91 TSN, August 29, 2008, pp. 154–155.


program of autonomy for Filipino Muslims, consistentwith the Peace Agreement entered into by the GRP andthe MNLF on September 2, 1996; and

c. Contribute to reconciliation and reconstruction inSouthern Philippines.

4. The general approach to the negotiations shall includethe following:

a. Seeking a middle ground between the aspirations ofthe MILF and the political, social and economicobjectives of the Philippine Government;

b. Coordinated Third Party facilitation, where needed;

c. Consultation with affected communities and sectors.(Emphasis supplied)

Indisputably, the members of the GRP Panel had clear andprecise instructions from the President to follow Philippineconstitutional processes and to preserve the nationalsovereignty and territorial integrity of the Philippines.92 Themembers of the GRP Panel failed to follow their basicinstructions from the President, and in the process, theyrecklessly risked the near dismemberment of the Republic.

GLARING HISTORICAL INACCURACY IN THE MOA-AD

The MOA-AD likewise contains a glaring historical inaccuracy.The MOA-AD declares the Bangsamoro as the single “FirstNation.”93 The term “First Nations” originated in92 The President’s Memorandum of Instructions dated September 8,

2003 reiterated verbatim paragraph 1 of the Memorandum ofInstructions from the President dated March 1, 2001.

93 Paragraph 4 on Concepts and Principles of the MOA-AD provides:“Both Parties acknowledge that the right to self-governance of theBangsamoro people is rooted on ancestral territoriality exercisedoriginally under the suzerain authority of their sultanates and thePat a Pangampong ku Ranaw. The Moro sultanates were states orkarajaan/kadatuan resembling a body politic endowed with allthe elements of nation-state in the modern sense. As a domestic


Canada.94 The term refers to indigenous peoples of a territory,with the assumption that there are one or more subsequentnations or ethnic groups, different from the indigenous peoples,that settled on the same territory. Thus, in Canada, the UnitedStates, Australia and New Zealand, the white Europeans settlersare the subsequent nations belonging to a different ethnicgroup that conquered the indigenous peoples. In Canada, thereis not a single First Nation but more than 600 recognized FirstNations, reflecting the fact that the indigenous peoples belongto various “nation” tribes.

In Mindanao, the Lumads who kept their indigenous beliefs,as well as those who centuries later converted to either Islamor Christianity, belong to the same ethnic Malay race. Even thesettlers from Luzon and Visayas belong to the same ethnic Malayrace. Declaring the Bangsamoros alone as the single “FirstNation” is a historical anomaly. If ethnicity alone is the criterionin declaring a First Nation, then all peoples of Mindanaobelonging to the Malay race are the First Nations. If resistanceto foreign beliefs is the criterion in declaring a First Nation,then the 18 Lumad groups in Mindanao are the First Nations.

When asked during the oral arguments why the MOA-ADdeclares the Bangsamoros as the single “First Nation,” theSolicitor General answered that “the MILF requested that theybe considered a First Nation.”95 The GRP Panel should not readilyagree to include in the text of the agreement, an official

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 havingentered into treaties of amity and commerce with foreign nations.The Parties concede that the ultimate objective of entrenching theBangsamoro homeland as a territorial space is to secure theiridentity and posterity, to protect their property rights and resourcesas well as to establish a system of governance suitable andacceptable to them as distinct dominant people.” (Emphasissupplied)

94 See Story of the Assembly of First Nations,<http://www.afn.ca/article.asp?id=59>.

95 TSN, August 29, 2008, pp. 718 and 721.


document, anything that the MILF Panel wants. Claims tohistoricity must be verified because historical inaccuracies haveno place in a peace agreement that resolves a dispute rooted toa large extent in historical events.

THE COST OF REPARATION COULD BANKRUPT THENATIONAL GOVERNMENT

The MOA-AD recognizes that the Bangsamoro’s ancestraldomain, homeland and historic territory cover the entireMindanao, Sulu and Palawan areas.96 While the MOA-ADrecognizes “vested property rights,”97 other than licenses orcontracts to exploit natural resources which are revocable atwill by the BJE, the MOA-AD requires the Government toprovide “adequate reparation” to the Bangsamoro for the“unjust dispossession of their territorial and proprietary rights,customary land tenures, or their marginalization.”98 Such unjustdispossession includes not only the lands taken from theBangsamoro since the arrival of the Spaniards in 1521, but also96 Paragraphs 1 and 3 on Concepts and Principles of the MOA-AD; see

notes 49 and 50; Paragraph 1 on Territory of the MOA-AD provides:“The Bangsamoro homeland and historic territory refer to the landmass as well as the maritime, terrestrial, fluvial and alluvialdomains, and the aerial domain, the atmospheric space above it,embracing the Mindanao-Sulu-Palawan geographic region.However, delimitations are contained in the agreed Schedules(Categories).”

97 Paragraph 7 on Concepts and Principles of the MOA-AD provides:“Vested property rights upon the entrenchment of the BJE shall berecognized and respected subject to paragraph 9 of the strand onResources.”

98 Paragraph 7 on Resources of the MOA-AD provides: “The legitimategrievances of the Bangsamoro people arising from any unjustdispossession of their territorial and proprietary rights, customaryland tenures, or their marginalization shall be acknowledged.Whenever restoration is no longer possible, the GRP shall takeeffective measures or adequate reparation collectively beneficialto the Bangsamoro people, in such quality, quantity and status tobe determined mutually by both Parties.” (Emphasis supplied)


all the natural resources removed from such lands since 1521.In short, the Government must pay compensation to the BJE forall titled private lands, as well as all natural resources taken orextracted, in Mindanao, Sulu and Palawan.

If the lands are still State owned – like public forests, militaryand civil reservations, public school sites, public parks or sitesfor government buildings – the Government must return thelands to the BJE. The MOA-AD further states, “Wheneverrestoration is no longer possible, the GRP shall take effectivemeasures or adequate reparation collectively beneficial to theBangsamoro people, in such quality, quantity and status to bedetermined mutually by both Parties.”

The cost of reparation could bankrupt the Government. TheExecutive branch never consulted Congress, which exercisesexclusively the power of the purse, about this commitment topay “adequate reparation” to the BJE, a reparation that obviouslyhas a gargantuan cost. Of course, under Philippine law Congressis not bound by this commitment of the Executive branch. Underinternational law, however, the Philippines is bound by suchcommitment of the Executive branch.

THERE IS NO DISARMAMENT UNDER THE MOA-AD

Respondents have repeatedly claimed during the oralarguments that the final comprehensive peace agreement willlead to the disarmament of the MILF.99 However, paragraph 8on Governance of the MOA-AD allows the BJE “to build, developand maintain its own x x x police and internal security force.”Clearly, the BJE’s internal security force is separate from itspolice. The obvious intention is to constitute the present MILFarmed fighters into the BJE’s internal security force. In effect,there will be no disarmament of the MILF even after the signingof the comprehensive peace agreement.

The BJE can deploy its internal security force not only withinthe “core”100 BJE territory, but also outside of the core BJE99 TSN, August 29, 2008, p. 704.100 Paragraph 2(c) on Territory of the MOA-AD provides: “The Parties

affirm that the core of the BJE shall constitute the present geographic


territory, that is, in ancestral lands of the Lumads that are locatedin Christian provinces, cities and municipalities. Underparagraphs 1 and 3 on Concepts and Principles of the MOA-AD,the Lumads and all their ancestral lands in Mindanao, Sulu andPalawan are made part of the BJE. Thus, the MOA-AD evenallows the MILF to station permanently its MILF armed fighterswithin Christian provinces, cities and municipalities outside ofthe core BJE territory.

DUTY TO PRESERVE TERRITORIAL INTEGRITYAND NATIONAL SOVEREIGNTY

Under the United Nations Declaration on the Rights of IndigenousPeoples, which is one of the documents referred to in the Termsof Reference of the MOA-AD, the right to self-determination ofindigenous peoples does not mean a right to dismember orimpair the territorial integrity or political unity of a sovereignand independent State like the Philippines. Article 46 of theDeclaration states:

ARTICLE 46

1. Nothing in this Declaration may be interpreted as implyingfor any State, people, group or person any right to engagein any activity or to perform any act contrary to the Charterof the United Nations or construed as authorizing orencouraging any action which would dismember or impair,totally or in part, the territorial integrity or political unityof sovereign and independent States. (Emphasis supplied)

Under international law, every sovereign and independentState has the inherent right to protect from dismembermentits territorial integrity, political unity and national sovereignty.The duty to protect the territorial integrity, political unity andnational sovereignty of the nation in accordance with theConstitution is not the duty alone of the Executive branch.Where the Executive branch is remiss in exercising this solemn

area of the ARMM, including the municipalities of Baloi, Munai,Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanaodel Norte that voted for inclusion in the ARMM during the 2001plebiscite.”


duty in violation of the Constitution, this Court, in theappropriate case as in the present petitions, must step inbecause every member of this Court has taken a sworn duty todefend and uphold the Constitution.

A FINAL WORD

No one will dispute that the nation urgently needs peace inMindanao. The entire nation will truly rejoice if peace finallycomes to Mindanao. The Executive branch must thereforecontinue to pursue vigorously a peaceful settlement of theMoro insurgency in Mindanao. No nation can progress anddevelop successfully while facing an internal armed conflict.101

However, any peace agreement that calls for amendmentsto the Constitution, – whatever the amendments may be,including the creation of the BJE – must be subject to theconstitutional and legal processes of the Philippines. Theconstitutional power of Congress to propose amendments tothe Constitution, and the constitutional power of the people toapprove or disapprove such amendments, can never bedisregarded. The Executive branch cannot usurp suchdiscretionary sovereign powers of Congress and the people, asthe Executive branch did when it committed to amend theConstitution to conform to the MOA-AD.

There must also be proper consultations with all affectedstakeholders, where the Constitution or existing laws requiresuch consultations. The law requires consultations for a practicalpurpose – to build consensus and popular support for aninitiative, in this case the peace agreement. Consultationsassume greater importance if the peace agreement calls forconstitutional amendments, which require ratification by thepeople. A peace agreement negotiated in secret, affecting thepeople’s rights, lives and destinies, that is suddenly sprung onthe people as a fait accompli, will face probable rejection in aplebiscite.101 Paul Collier calls internal armed conflicts “development in

reverse.” Development and Conflict, Centre for the Study of AfricanEconomies, Department of Economics, Oxford University, October1, 2004.


In short, a peace agreement that amends the Constitutioncan be lasting only if accepted by the people in accordance withconstitutional and legal processes.

Accordingly, I vote to GRANT the petitions and declare theMOA-AD UNCONSTITUTIONAL.

233PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J AZCUNA, SEPARATE OPINION

SEPARATE OPINION

Azcuna, J.:

I agree with the ponencia but I hold the view that, had the MOA-AD been signed as planned, it would have provided a basis fora claim in an international court that the Philippines was boundby its terms at the very least as a unilateral declaration madebefore representatives of the international community withvital interests in the region.

Whether the case of Australia v. France1 or that of BurkinaFaso v. Mali,2 is the one applicable, is not solely for this Court todecide but also for the international court where the Philippinescould be sued. While we may agree that the Philippines shouldnot be considered bound, the international court may ruleotherwise. There is need to consult the people before riskingthat kind of outcome.

On this point, Martin Dixon and Robert McCorquodale, intheir CASES AND MATERIALS ON INTERNATIONAL LAW, observe:

B. Unilateral statements

Nuclear Test Cases (Australia v. France and New Zealand v. France)MeritsICJ Rep. 1974 253, International Court of Justice

Australia and New Zealand brought proceedings against Francearising from nuclear tests conducted by France in the SouthPacific. Before the Court had an opportunity to hear in full themerits of the case, statements were made by French authoritiesindicating that France would no longer conduct atmosphericnuclear tests. The court held by nine votes to six that, due tothese statements by France, the claim of Australia and NewZealand no longer had any object and so the Court did nothave to decide the issues in the case.

It is well recognized that declarations made by way of unilateralacts, concerning legal or factual situations, may have the effect

1 1974 I.C.J. 253.2 1986 I.C.J. 554.


of creating legal obligations. Declarations of this kind maybe, and often are, very specific. When it is the intention of theState making the declaration that it should become boundaccording to its terms, that intention confers on thedeclaration the character of a legal undertaking, the Statebeing thenceforth legally required to follow a course of conductconsistent with the declaration. An undertaking of this kind, ifgiven publicly, and with an intent to be bound, even though notmade within the context of international negotiations, isbinding. In these circumstances, nothing in the nature of aquid pro quo nor any subsequent acceptance of the declaration,not even any reply or reaction from other States, is requiredfor the declaration to take effect, since such a requirementwould be inconsistent with the strictly unilateral nature of thejuridical act by which the pronouncement by the State wasmade x x x.

x x x x

NOTES:

1. It is very rare that a Court will find that a unilateralstatement will bind a State. In Frontier Dispute Case(Burkina Faso v. Mali) 1986 ICJ Rep 554, a Chamber of theInternational Court of Justice held that a statement by thePresident of Mali at a press conference did not createlegal obligations on Mali, especially as ‘The Chamberconsiders that it has a duty to show even greater cautionwhen it is a question of a unilateral declaration notdirected to any particular recipient.’ (paragraph 39).3

Finally, precedents are not strictly followed in internationallaw, so that an international court may end up formulating anew rule out of the factual situation of our MOA-AD, making aunilateral declaration binding under a new type of situation,where, for instance, the other party is not able to sign a treatyas it is not yet a State, but the declaration is made to a “particularrecipient” and “witnessed” by a host of sovereign States.

As to the rest, I concur.

3 Pages 59–61, emphasis supplied.

235PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION

SEPARATE OPINION

Tinga, J.:

As a matter of law, the petitions were mooted by theunequivocal decision of the Government of the Philippines,through the President, not to sign the challenged Memorandumof Agreement on Ancestral Domain (MOA-AD). The correctcourse of action for the Court is to dismiss the petitions. Theessential relief sought by the petitioners – a writ of prohibitionunder Rule 65 – has already materialized with the Philippinegovernment’s voluntary yet unequivocal desistance fromsigning the MOA-AD, thereby depriving the Court of a live caseor controversy to exercise jurisdiction upon.

At the same time, I deem it impolitic to simply vote for thedismissal the cases at bar without further discourse in view oftheir uniqueness in two aspects. At the center is an agreementand yet a party to it was not impleaded before it was forsaken.And while the unimpleaded party is neither a state nor aninternational legal person, the cases are laden with internationallaw underpinnings or analogies which it may capitalize on tostir adverse epiphenomenal consequences.

According to news reports, the Moro Islamic Liberation Front(MILF) has adopted the posture that as far as it is concerned,the MOA-AD is already effective, and there may be indeed atenuous linkage between that stance and the apparent fact thatthe MOA-AD, though unsigned, bears the initials of membersof the Philippine negotiating panel, the MILF negotiating paneland the peace negotiator of the Malaysian government. Theseconcerns warrant an extended discussion on the MOA-AD, evenif the present petitions are moot and academic.

I.

It is a bulwark principle in constitutional law that an essentialrequisite for a valid judicial inquiry is the existence of an actualcase or controversy. A justiciable controversy must be definiteand concrete, touching the legal relations of parties havingadverse legal interests. It must be a real and substantial


controversy admitting of specific relief through a decree that isconclusive in character, as distinguished from an opinionadvising what the law would be upon a hypothetical state offacts.1 The exercise of the power of judicial review dependsupon the existence of a case or controversy. Consequently, if acase ceases to be a lively controversy, there is no justificationfor the exercise of the power, otherwise, the court would berendering an advisory opinion should it do so.2

We held in Gancho-on v. Secretary of Labor:3

It is a rule of universal application, almost, that courts ofjustice constituted to pass upon substantial rights will notconsider questions in which no actual interests are involved;they decline jurisdiction of moot cases. And where the issuehas become moot and academic, there is no justiciablecontroversy, so that a declaration thereon would be of nopractical use or value. There is no actual substantial relief towhich petitioners would be entitled and which would benegated by the dismissal of the petition.

In the recent ruling in Suplico v. NEDA,4 the Presidentofficially desisted from pursuing a national government projectwhich was challenged before this Court. The Court was impelledto take mandatory judicial notice5 of the President’s act, and1 I. Cruz. CONSTITUTIONAL LAW (2007 ed.), at 23. See also R. MARTIN, PHILIPPINE

CONSTITUTIONAL LAW (1954 ed.), at 56–57.2 V. Mendoza, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTION: CASES AND MATERIALS

(2004 ed.), at 107.3 337 Phil. 654, 658 (1997).4 G.R.No. 178830, July 14, 2008. Available at

<http://www. supremecourt.gov.ph/jurisprudence /2008/july2008/178830.htm>.

5 Under Section 1, Rule 129 of the Rules of Court. “Judicial Notice,when mandatory. – A court shall take judicial notice, withoutintroduction of evidence, of the existence and territorial extent ofstates, their political history, forms of government and symbols ofnationality, the law of nations, the admiralty and maritime courtsof the world and their seals, the political constitution and historyof the Philippines, the official acts of the legislative, executive and


consequently declare the pending petitions as moot andacademic. The Court, through Justice Reyes, held:

Concomitant to its fundamental task as the ultimate citadel ofjustice and legitimacy is the judiciary’s role of strengtheningpolitical stability indispensable to progress and nationaldevelopment. Pontificating on issues which no longerlegitimately constitute an actual case or controversy will domore harm than good to the nation as a whole. Wise exerciseof judicial discretion militates against resolving the academicissues, as petitioners want this Court to do. This is especiallytrue where, as will be further discussed, the legal issues raisedcannot be resolved without previously establishing the factualbasis or antecedents.

Judicial power presupposes actual controversies, the veryantithesis of mootness. In the absence of actual justiciablecontroversies or disputes, the Court generally opts to refrainfrom deciding moot issues. Where there is no more live subjectof controversy, the Court ceases to have a reason to renderany ruling or make any pronouncement.

Kapag wala nang buhay na kaso, wala nang dahilan paramagdesisyon ang Husgado.6

The live controversy relied upon by the petitions was thelooming accession by the Philippine government to the MOA-AD, through a formal signing ceremony that was to be held atKuala Lumpur, Malaysia, on August 5, 2008. This ceremony wasprevented when the Court issued a Temporary RestrainingOrder on August 4, 2008, yet even after the TRO, it appearedthat the Government then was still inclined to sign the MOA-AD after the legal obstacles had been cleared. However, onSeptember 1, 2008, the Government through the Office of theSolicitor General, filed a Compliance, manifesting thepronouncement of Executive Secretary Ermita that “[n]o matterwhat the Supreme Court ultimately decides[,] the governmentwill not sign the MOA.” This declared intent was repeated in a

judicial departments of the Philippines, the laws of nature, themeasure of time, and the geographical divisions.”

6 Supra note 4.


Manifestation dated September 4, 2008, and verbally reiteratedduring the oral arguments before this Court.

In addition, the President herself publicly declared, asrecently as on October 2, 2008, that regardless of the ruling ofthe Supreme Court on these petitions, her government will notsign the MOA-AD, “in the light of the recent violent incidentscommitted by MILF lawless groups.”7 Clearly following Suplicothe Court has no choice but to take mandatory judicial notice ofthe fact that the Government will not sign or accede to theMOA-AD and on this basis dismiss to the petitions herein.

Thus, the Court is left with petitions that seek to enjoin theGovernment from performing an act which the latter had alreadyavowed not to do. There is no longer a live case or controversyover which this Court has jurisdiction. Whatever live case theremay have been at the time the petitions were filed have sincebecome extinct.

Admittedly, there are exceptions to the moot and academicprinciple. The fact that these exceptions are oft-discussed andapplied in our body of jurisprudence reflects an unbalancedimpression, for most petitions which are rendered moot andacademic are usually dismissed by way of unsigned or minuteresolutions which are not published in the Philippine Reportsor the Supreme Court Reports Annotated. Still, the moot andacademic principle remains a highly useful and often appliedtool for the Court to weed out cases barren of any currentdispute. Indeed, even with those exceptions in place, there isno mandatory rule that would compel this Court to exercisejurisdiction over cases which have become academic. For theexceptions to apply, it would be necessary, at bare minimum,to exhibit some practical utilitarian value in granting the writsof prohibition sought. Otherwise, the words of the Court wouldbe an empty exercise of rhetoric that may please some ears,but would not have any meaningful legal value.

7 “MOA-AD will not be signed by gov’t regardless of what SC decideson the issue – PGMA”. From “The Official Website of the Governmentof the Philippines” <http://www.gov.ph/news/?i=22392> datedOctober 3, 2008.


A usual exception to the moot and academic principle iswhere the case is capable of repetition yet evading review. Arecent example where the Court applied that exception was inSanlakas v. Executive Secretary,8 which involved the power ofthe President to declare a state of rebellion. Therein, the Courtdecided to exercise jurisdiction “[t]o prevent similar questionsfrom re-emerging.”9 It was clear in Sanlakas that the challengedact, the declaration by the President of a state of rebellion wasa unilateral act that was clearly capable of repetition, it havingactually been accomplished twice before.

Contrast that situation to this case, where the challengedact is not a unilateral act that can be reproduced with ease byone person or interest group alone. To repeat the challengedact herein, there would have to be a prolonged and delicatenegotiation process between the Government and the MILF,both sides being influenced by a myriad of unknown andinconstant factors such as the current headlines of the day.Considering the diplomatic niceties involved in the adoptionof the MOA-AD, it is well-worth considering the followingdiscussion on the complexity in arriving at such an agreement:

The making of an international agreement is not a simplesingle act. It is rather a complex process, requiring performanceof a variety of different functions or tasks by the officials of aparticipating state.

Among the functions which must be distinguished for evenminimal clarity are the following: (1) the formulation ofrational policies to guide the conduct of negotiations withother states; (2) the conduct of negotiations with therepresentatives of other states; (3) the approval of anagreement for internal application within the state, when suchinternal application is contemplated; (4) the approval of anagreement for the external commitment of the state; (5) thefinal utterance of the agreement as the external commitmentof the state to other states.10

8 G.R. No. 159085, 159103, and 159196, February 3, 2004, 421 SCRA656.

9 Id. at 665.10 W.M. Reisman, M. Arsanjani, S. Wiessner & G. Westerman,

INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE (2004 ed.), at 1280.


Assuming that the act can be repeated at all, it cannot berepeated with any ease, there being too many cooks stirringthe broth. And further assuming that the two sides are able tonegotiate a new MOA-AD, it is highly improbable that it wouldcontain exactly the same provisions or legal framework as thediscarded MOA-AD.

II.

Even though the dismissal of these moot and academic petitionsis in order in my view, there are nonetheless specialconsiderations that warrant further comment on the MOA-ADon my part.

As intimated earlier, the MILF has adopted the publicposition that as far as it is concerned, the MOA-AD has alreadybeen signed and is binding on the Government. To quote fromone news report:

“The MILF leadership, which is the Central Committee of theMILF, has an official position. that the memorandum ofagreement on the Bangsamoro Ancestral Domain has beensigned,” said Ghadzali Jaafar, MILF vice chairman for politicalaffairs.

x x x x

Jaafar said the MILF considers the MOA binding because itsdraft agreement was “initialed” last July 27 in Kuala Lumpurby Rodolfo Garcia, government chief negotiator; MohagherIqbal, MILF chief negotiator; Hermogenes Esperon, presidentialadviser on the peace process, and Datuk Othman binAbdulrazak, chief peace facilitator for the Malaysiangovernment.

“Our position is that after initialing, both parties initialed theMOA, that is a signing,” Jaafar said.

Jaafar said the scheduled signing yesterday in Kuala Lumpurwas merely “ceremonial and a formality, in a way to announceto all throughout the world that a memorandum of agreementhas been signed but actually the signing, actual signing wasdone.”


“So it’s a done deal as far as the MILF is concerned,” he said.

Jaafar said the MILF and the government set a ceremonialsigning of the MOA “because this is a very important document.”

“We want to be proud of it we want to announce it throughoutthe world that there is a memorandum of agreement betweenthe Moro Islamic Liberation Front and the government of theRepublic of the Philippines.”

He said the MILF expects the government to abide by the MOA“because this agreement is binding on both parties.”11

It appears that the persons who initialed the MOA-AD werePhilippine Presidential Peace Adviser Hermogenes Esperon,Jr., Philippine government peace negotiator Rodolfo Garcia,MILF chief negotiator Mohagher Iqbal, and Datuk Othman binAbdulrazak, chief peace facilitator of the Malaysiangovernment.12

The MILF is not a party to these petitions, and thus itsposition that the MOA-AD was in fact already signed throughthe initials affixed by representatives of the Philippine andMalaysian governments and the MILF has not been formallypresented for the Court for adjudication. In an earliersubmission to the Court, I discussed the position of the MILFfrom the following perspective:

There is the danger that if the petitions were dismissed formootness without additional comment, it will be advocatedby persons so interested as to make the argument that theintrinsic validity of the MOA-AD provisions has been tacitlyaffirmed by the Court. Moreover, the unqualified dismissal ofthe petitions for mootness will not preclude the MILF frompresenting the claim that the MOA-AD has indeed already beensigned and is therefore binding on the Philippine government.

11 V. Reyes, “MILF: Pact a done deal after initialing,” Malaya (August6, 2008) at <http://www.malaya.com.ph/aug06/news3.htm> (lastvisited October 11, 2008).

12 “Govt: Initials do not make draft MOA on ancestral domain a donedeal.” GMANews.Tv, at <http://www.gmanews.tv/story/111830/Govt-Initials-do-not-make-draft-MOA-on-ancestral-domain-a-done-deal> (last visited October 11, 2008).


These concerns would especially be critical if either argumentis later presented before an international tribunal, that wouldlook to the present ruling of this Court as the main authorityon the status of the MOA-AD under Philippine internal law.

The use of municipal law rules for international judicial andarbitral procedure has been more common and more specificthan any other type of application.13 The International Court ofJustice has accepted res judicata as applicable to internationallitigation.14 The following observations by leadingcommentators on international law should give pause forthought:

It is clear that, in general, judicial decisions (of nationaltribunals) in cases involving international law, domestic aswell as international, can and will be cited for theirpersuasiveness by parties to an international legal dispute,the decisions of courts and other tribunals often being seen toaffirm or announce a treaty-based rule or interpretation, atenet of customary international law, or a general principle oflaw, international or domestic. Judicial decisions are seen astrustworthy evidence of what the law really is on a givensubject; and this point is verified by most of the leadinginternational adjudicative and arbitral decisions that havehelped to lay the foundations of, and otherwise articulate, thesubstance of international law.15 (Words in parenthesis andemphasis supplied)

Thus, in my earlier submission, I stated that should thismatter ever be referred to an international tribunal foradjudication, it is highly probable that a ruling based onmootness alone without more would be taken as an indicativeendorsement of the validity of the MOA under Philippine law.That misimpression should be rectified for purposes thattranscend the ordinary adjudicative exercise, I stressed.13 B. Weston, R. Falk, H. Charlesworth & A. Strauss, INTERNATIONAL LAW AND

WORLD ORDER: A PROBLEM-ORIENTED COURSEBOOK (4th ed), at 144; words inparenthesis supplied.

14 Id., citing Effect of Awards Made by the United NationsAdministrative Tribunal, 1956 ICJ 53 (Advisory Opinion).

15 Id. at 151.


Firstly, is the MILF correct when it asserted that the MOA-AD may already be considered as binding on the Philippinegovernment?

Reference to the initialed but unsigned copy of the MOA-AD is useful.16 There are three distinct initials that appear atthe bottom of each and every page of the 11-page MOA-AD:that of Garcia and Esperon for the Philippine negotiating panel,and that of Iqbal for the MILF. Page 11, the signature page,appears as follows:

IN WITNESS WHEREOF, the undersigned being therepresentatives of the Parties hereby affix their signatures.

Done this 5th day of August, 2008 in Kuala Lumpur, Malaysia.

FOR THE GRP FOR THE MILF (unsigned) (unsigned)

RODOLFO C. GARCIA MOHAGHER IQBAL Chairman ChairmanGRP Peace Negotiating Panel MILF Peace Negotiating Panel

WITNESSED BY:

(unsigned)DATUK OTHMAN BIN ABD RAZAK

Special Adviser to the Prime Minister

ENDORSED BY:

(unsigned)AMBASSADOR SAYED ELMASRY

Adviser to Organization of the Islamic Conference (OIC)Secretary General and Special Envoy for Peace Process inSouthern Philippines

16 See Annex “B” to Petition in G.R. No. 183893.


IN THE PRESENCE OF:

(unsigned) (unsigned)DR. ALBERTO G. ROMULO DATO’ SERI UTAMA DR. RAISSecretary of Foreign Affairs BIN YATIMRepublic of the Philippines Minister of Foreign Affairs

MalaysiaInitialed by:

Sec. Rodolfo Garcia (initialed) Mohagher Iqbal (initialed)

Sec. Hermogenes Esperon (initialed)

Witnessed by:

Datuk Othman bin Abd Razak (initialed)

Dated 27 July 2008

Two points are evident from the above-quoted portion ofthe MOA-AD. First, the affixation of signatures to the MOA-ADwas a distinct procedure from the affixation of initials to thepages of the document. Initialization was accomplished on July27, 2008, while signature was to have been performed on August5, 2008. The initialing was witnessed by only one person, Razak,while the signing of the MOA-AD was to have been witnessedby the respective heads of the Foreign Affairs departments ofthe Philippines and Malaysia. Clearly, signing and initialing wasnot intended to be one and the same.

Second, it is unequivocal from the document that the MOA-AD was to take effect upon the affixation of signatures on August5, 2008 in Kuala Lumpur, Malaysia, and not through thepreliminary initialing of the document on July 27, 2008.

Under our domestic law, consent of the parties is anindispensable element to any valid contract or agreement.17

The three stages of a contract include its negotiation orpreparation, its birth or perfection, and its fulfillment orconsummation. The perfection of the contract takes place onlyupon the concurrence of its three essential requisites – consentof the contracting parties, object certain which is the subjectmatter of the contract, and cause of the obligation which is17 See CIVIL CODE, Article 1318.


established.18 Until a contract is perfected, there can be nobinding commitments arising from it, and at any time prior tothe perfection of the contract, either negotiating party maystop the negotiation.19

Consent is indubitably manifested through the signatureof the parties. That the Philippine government has not yetconsented to be bound by the MOA-AD is indubitable. Theparties had agreed to a formal signature ceremony in thepresence of the Secretary of Foreign Affairs, the alter ego ofthe President of the Philippines. The ceremony never tookplace. The MOA-AD itself expresses that consent was tomanifested by the affixation of signatures, not the affixation ofinitials. In addition, the subsequent announcement by thePresident that the Philippine Government will not sign theMOA-AD further establishes the absence of consent on the partof the Philippines to the MOA-AD. Under domestic law, theMOA-AD cannot receive recognition as a legally bindingagreement due to the absence of the indispensable requisiteof consent to be bound.

Nonetheless, it is unlikely that the MILF or any otherinterested party will seek enforcement of the MOA with thePhilippine courts. A more probable recourse on their part is toseek enforcement of the MOA before an international tribunal.Could the Philippines be considered as being bound by theMOA under international law?

Preliminarily, it bears attention that Justice Morales hasexhaustively and correctly debunked the proposition that theMOA-AD can be deemed a binding agreement underinternational law, or that it evinces a unilateral declaration ofthe Philippine government to the international community thatit will grant to the Bangsamoro people all the concessions statedin the MOA-AD. It would thus be improper to analyze whetherthe MOA-AD had created binding obligations through the lensof international law or through an instrument as the ViennaConvention on the Law of Treaties, as it should be domestic lawalone that governs the interpretation of the MOA-AD.18 J. Vitug, III CIVIL LAW: OBLIGATIONS AND CONTRACTS (2003 ed.), at 108–109.19 Id. at 109.


Nonetheless, even assuming that international lawprinciples can be utilized to examine that question, it is clearthat the MILF’s claim that the MOA-AD is already binding on thePhilippine government will not prevail.

The successful outcome of negotiation of internationalagreements is the adoption and authentication of the agreedtext.20 Once a written text is agreed upon and adopted, it iseither signed, or initialed and subsequently signed by thediplomats and then submitted to the respective nationalauthorities for ratification.21 Once a treaty has been adopted,the manner in which a state consents to be bound to it is usuallyindicated in the treaty itself.22 Signature only expresses consentto be bound when it constitutes the final stage of a treaty-making process.23

Reisman, Arsanjani, Wiessner & Westerman explain theprocedure in the formation of international agreements,including the distinction between initialing and signing:

Treaties are negotiated by agents of states involved. Usually, oncethe agents agree on a text, the authenticity of this agreed-uponmutual commitment is confirmed by the agents placing their initialson the draft agreement (“initialing”). Their principals, usually theheads of state or their representatives, then sign the treaty withina time period specified in the treaty, and submit it to internalprocesses, usually legislative authorities, for approval. Once thisapproval is secured, the heads of state express the consent of theirstate to be bound by depositing an instrument of ratification withthe depositary power (in the case of a multilateral treaty) or withthe other state party (in the case of a bilateral treaty). In the caseof a multilateral treaty not signed in time, a state can still validlydeclare its consent to be bound by submitting an instrument ofaccession.24

20 J. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (6th ed.), at 582.21 A. Cassese, INTERNATIONAL LAW (2nd ed.), at 172.22 S. Murphy, PRINCIPLES OF INTERNATIONAL LAW (2006 ed.), at 68.23 M. Fitzmaurice, “THE ANATOMY OF A TREATY,” IN INTERNATIONAL LAW (OXFORD),

ed. by M.Evans.24 Supra note 10, at 1280–1281.


This discussion is confirmatory that initialing is generallynot the act by which an international agreement is signed, buta preliminary step that confirms the authenticity of the agreed-upon text of the agreement. The initialing of the agreementreflects only the affirmation by the negotiating agents that thetext of the prospective agreement is authentic. It is plausiblefor the negotiating agents to have initialed the agreement butfor the principal to later repudiate the same before signing theagreement.

Article 12(2)(a) of the Vienna Convention on the Law ofTreaties does provide that “the initialing of a text constitutes asignature of the treaty when it is established that thenegotiating States so agreed.” At bar, it is evident that therehad been no agreement that the mere initialing of the MOA-ADwould constitute the signing of the agreement. In fact, it wasexplicitly provided in the MOA-AD that the signing of theagreement would take place on a date different from that whenthe document was initialed. Further, a formal signing ceremonyindependent of the initialing procedure was scheduled by theparties.

The fact that the MOA-AD reflects an initialing process whichis independent of the affixation of signatures, which was to beaccomplished on a specific date which was days after the MOA-AD was initialed, plainly indicates that the parties did not intendto legally bind the parties to the MOA through initialing. Thereis no cause under international law to assume that the MOA-AD, because it had been initialed, was already signed by thePhilippine Government or the MILF even.

III.

The position of the MILF that the MOA-AD already createsbinding obligations imposable on the Government cannotultimately be sustained, even assuming that the initialing ofthe document had such binding effect. That position of the MILFsupposes that the provisions of the MOA-AD are intrinsicallyvalid under Philippine law. It takes no inquiry at great depth tobe enlightened that the MOA-AD is incongruous with thePhilippine Constitution.


The Constitution establishes a framework for theadministration of government through political subdivisions.The territorial and political subdivisions of the Republic of thePhilippines are the provinces, cities, municipalities, andbarangays.25 In addition, there shall be autonomous regions inMuslim Mindanao and the Cordilleras, in accordance withrespective organic acts enacted by Congress.26 The Constitutionhas adopted decentralization as a governing principle withrespect to local government rule, and this especially holds truewith respect to the autonomous regions. As we explained inDisomangcop v. DPWH:27

Regional autonomy is the degree of self-determinationexercised by the local government unit vis-à-vis the centralgovernment.

In international law, the right to self-determination need notbe understood as a right to political separation, but rather asa complex net of legal-political relations between a certainpeople and the state authorities. It ensures the right of peoplesto the necessary level of autonomy that would guarantee thesupport of their own cultural identity, the establishment ofpriorities by the community’s internal decision-makingprocesses and the management of collective matters bythemselves.

If self-determination is viewed as an end in itself reflecting apreference for homogeneous, independent nation-states, it isincapable of universal application without massivedisruption. However, if self-determination is viewed as a meansto an end – that end being a democratic, participatory politicaland economic system in which the rights of individuals andthe identity of minority communities are protected – itscontinuing validity is more easily perceived.

Regional autonomy refers to the granting of basic internalgovernment powers to the people of a particular area or regionwith least control and supervision from the central government.

25 CONSTITUTION, Article X, Section [1].26 CONSTITUTION, Section 15, in relation with Article X, Section 1.27 G.R. No. 149848, November 25, 2004, 444 SCRA 203.


The objective of the autonomy system is to permit determinedgroups, with a common tradition and shared social-culturalcharacteristics, to develop freely their ways of life and heritage,exercise their rights, and be in charge of their own business.This is achieved through the establishment of a specialgovernance regime for certain member communities whochoose their own authorities from within the community andexercise the jurisdictional authority legally accorded to themto decide internal community affairs.

In the Philippine setting, regional autonomy implies thecultivation of more positive means for national integration. Itwould remove the wariness among the Muslims, increase theirtrust in the government and pave the way for the unhamperedimplementation of the development programs in the region.x x x28

At the same time, the creation of autonomous regions doesnot signify the establishment of a sovereignty distinct fromthat of the Republic, as it can be installed only “within theframework of this Constitution and the national sovereignty aswell as territorial integrity of the Republic of the Philippines.”29

28 Id. at 230–231.29 Id. at 229; citing CONSTITUTION, Article X, Section 15. See also III RECORD

235, August 12, 1986:

MR. NOLLEDO. As I already stated, these autonomous regions areestablished within the framework of our national sovereignty. Andin answer to the question of Commissioner Bengzon this morningthat should there be rebels against the government, whether thiswill prevent the President from sending armed forces to suppressthe rebellion, I said, “No, because of the expression ‘within theframework of national sovereignty.’” We are not grantingsovereignty to the autonomous region. That is why the term “powerof autonomous region” was appropriately used because as anaccepted principle in constitutional law, sovereignty is indivisible.That is why we also maintain the provision in both CommitteeReport Nos. 21 and 25 that the President of the Philippines hassupervisory power over autonomous regions to see to it that lawsare faithfully executed. So, I find no inconsistency between thepowers to be granted to autonomous regions and the sovereigntyof the Republic of the Philippines.


At present, the constitutional mandate of local autonomyfor Muslim Mindanao has already been implemented. RepublicAct No. 6734 (RA No. 6734), entitled “An Act Providing for AnOrganic Act for the Autonomous Region in Muslim Mindanao,”was enacted and signed into law on August 1, 1989. The lawcontains elaborate provisions on the powers of the RegionalGovernment and the areas of jurisdiction which are reservedfor the National Government. The year 2001 saw the passage ofRepublic Act No. 9054, entitled “An Act to Strengthen and Expandthe Organic Act for the Autonomous Region in MuslimMindanao, Amending for the Purpose Republic Act No. 6734,entitled An Act Providing for the Autonomous Region in MuslimMindanao, as Amended.” Republic Act No. 9054 containsdetailed provisions on the powers of the Regional Governmentand the retained areas of governance of the NationalGovernment.

Nothing prevents Congress from amending or reenactingan Organic Act providing for an autonomous region for MuslimMindanao, even one that may seek to accommodate the termsof the MOA-AD. Nonetheless, the paramount requirementremains that any organic act providing for autonomy inMindanao must be in alignment with the Constitution and itsparameters for regional autonomy.

The following provisions from Article X of the Constitutionspell out the scope and limitations for the autonomous regionsin Mindanao and the Cordilleras:

SEC. 18. The Congress shall enact an organic act for eachautonomous region with the assistance and participation ofthe regional consultative commission composed ofrepresentatives appointed by the President from a list ofnominees from multisectoral bodies. The organic act shalldefine the basic structure of government for the regionconsisting of the executive department and legislativeassembly, both of which shall be elective and representativeof the constituent political units. The organic acts shalllikewise provide for special courts with personal, family, andproperty law jurisdiction consistent with the provisions ofthis Constitution and national laws.


The creation of the autonomous region shall be effective whenapproved by majority of the votes cast by the constituent unitsin a plebiscite called for the purpose, provided that onlyprovinces, cities, and geographic areas voting favorably insuch plebiscite shall be included in the autonomous region.

SEC. 20. Within its territorial and subject to the provisions ofthis Constitution and national laws, the organic act ofautonomous regions shall provide for legislative powers over:








(8) Preservation and development of the cultural heritage;and

(9) Such other matters as may be authorized by law for thepromotion of the general welfare of the people of theregion.

SEC. 21. The preservation of peace and order within the regionsshall be the responsibility of the local police agencies whichshall be organized, maintained, supervised, and utilized inaccordance with applicable laws. The defense and security ofthe regions shall be the responsibility of the NationalGovernment.

The autonomous regional government to be establishedthrough the organic act consists of the executive and legislativebranches of government, both of which are elective. Withrespect to the judicial branch, the Constitution authorizes theorganic acts to provide for special courts with jurisdiction limitedover personal, family and property law. The scope of legislativepowers to be exercised by the autonomous legislative assemblyis limited to the express grants under Section 20, Article X. The


national government retains responsibility over the defenseand security of the autonomous regions. In addition, underSection 17, Article X, “[a]ll powers, functions, andresponsibilities not granted by this Constitution or by law tothe autonomous regions shall be vested in the NationalGovernment.”

The MOA-AD acknowledges that the Bangsamoro JuridicalEntity (BJE) shall have authority and jurisdiction over theterritory defined in the agreement as the ancestral domain ofthe Bangsamoro people. For the BJE to gain legal recognitionunder the Constitution, it must be identifiable as one of therecognized political subdivisions ordained in the Constitution.That is not the case. In fact, it is apparent that the BJE wouldhave far superior powers than any of the political subdivisionsunder the Constitution, including the autonomous regionalgovernment for Muslim Mindanao.

The powers of government extended to the BJE are well inexcess than that which the Constitution allocates to theautonomous regional government for Muslim Mindanao. Forexample, it was agreed upon in the MOA that:

[T]he BJE shall be empowered to build, develop and maintainits own institutions, inclusive of, civil service, electoral,financial and banking, education, legislation, legal, economic,and police and internal security force, judicial system andcorrectional institutions, necessary for developing aprogressive Bangsamoro society x x x.30

Under the Constitution, the extent through which theautonomous regional government could establish a judicialsystem was confined to the extent of courts with jurisdictionover personal, property and family law.31 Obviously, the MOA-AD intends to empower the BJE to create a broader-basedjudicial system with jurisdiction over matters such as criminallaw or even political law. This provision also derogates fromthe authority of the constitutional commissions, most explicitlythe Civil Service Commission (CSC) and the Commission on30 MOA-AD, Governance, Paragraph 8.31 See CONSTITUTION, Article X, Section 18.


Elections (COMELEC). The CSC administers the civil service,which embraces all branches, subdivisions, instrumentalities,and agencies of the Government.32 Yet the MOA-AD wouldempower the BJE to build, develop and maintain its own civilservice. The BJE is likewise authorized to establish its ownelectoral institutions. Yet under the Constitution, it is theCOMELEC which has the exclusive power to enforce andadminister election laws.33

Much of the MOA-AD centers on agreements relating to theexploitation of the economic resources over the proposedBangsamoro homeland. The BJE is vested with jurisdiction,power and authority over land use, development, utilization,disposition and exploitation of natural resources within thatterritory. To that end, the BJE is empowered “to revoke or grantforest concessions, timber license, contracts or agreements inthe utilization and exploitation of natural resources.”34 Oneprovision of the MOA-AD makes it certain that it is the BJE whichhas exclusive jurisdiction in the exploitation of naturalresources, particularly those utilized in the production ofenergy:

Jurisdiction and control over, and the right of exploring for,exploiting, producing and obtaining all potential sources ofenergy, petroleum, in situ, fossil fuel, mineral oil and naturalgas, whether onshore or offshore, is vested in the Bangsamorojuridical entity as the party having control within its territorialjurisdiction, 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 reasonableterms as may be agreed by both Parties, temporarily assumeor direct the operations of such strategic resources.35

These powers, which are unavailable to any of the politicalsubdivisions, are reserved under the Constitution to theRepublic as the owner of all lands of the public domain, waters,32 See CONSTITUTION, Article IX-B, Section 2(1) in relation to Section 1(1).33 CONSTITUTION, Article IX-C, Section 2(1).34 MOA-AD, Resources, paragraph 2(d).35 MOA-AD, Resources, paragraph 5.


minerals, coal, petroleum, and other mineral oils, all forces ofpotential energy, fisheries, forests or timber, wildlife, flora andfauna, and other natural resources.36

As a corollary to the BJE’s power over the exploitation ofnatural resources, the MOA-AD accords it freedom “to enterinto any economic cooperation and trade relations with foreigncountries,” including “the option to establish and openBangsamoro trade mission in foreign countries with which ithas economic cooperation agreements.”37 Such a “freedom” iscontrary to the long-established principle that “[i]n our systemof government, the President, being the head of state, isregarded as the sole organ and authority in external relationsand is the country’s sole representative with foreign nations.”38

The MOA-AD even assures that “the Central Governmentshall take necessary steps to ensure the Bangsamoro juridicalentity’s participation in international meetings and events, e.g.ASEAN meetings and other specialized agencies of the UnitedNations.”39 These terms effectively denote a concession on thepart of the Republic of the Philippines of a segregate legalpersonality to the BJE before international fora.

It bears reminder that regional autonomy under Article X ofthe Constitution remains “within the framework of thisConstitution and the national sovereignty as well as territorialintegrity of the Republic of the Philippines.” These provisions36 See Article XII, Section 2 which also provides “x x x The exploration,

development, and utilization of natural resources shall be underthe full control and supervision of the State. x x x”

37 MOA-AD, Resources, paragraph 4.38 Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, July

6, 2005, 462 SCRA 622, 632; citing I. Cortes, THE PHILIPPINE PRESIDENCY: ASTUDY OF EXECUTIVE POWER (1966), p. 187. “[T]he President is vested withthe authority to deal with foreign states and governments, extendor withhold recognition, maintain diplomatic relations, enter intotreaties, and otherwise transact the business of foreign relations.In the realm of treaty-making, the President has the sole authorityto negotiate with other states.” Id.

39 Id.


of the MOA-AD are extra-constitutional and diminish nationalsovereignty as they allocate to the BJE powers and prerogativesreserved under the Constitution to the State. Clearly, theframework of regional government that premises the MOA-ADis unworkable within the context of the Constitution.

IV.

A member of the GRP Peace Panel, Atty. Sedfrey Candelaria,had admitted to the Court during the oral arguments held onAugust 29, 2008 that the implementation of the MOA-AD wouldrequire amendments to the Constitution. That admissioneffectively concedes that the MOA-AD is inconsistent with theConstitution, and thus cannot acquire valid status underPhilippine law.

It was evident thought on the part at least of the Philippinenegotiating panel, that the price for peace in Mindanao involvedin part, the amendment of the Philippine Constitution. There isnothing theoretically wrong with that notion, but because thatchoice is the most fundamental one the sovereign people canadopt, any binding commitment to enact charter changeundertaken by an agent of government must be intenselyscrutinized.

Any legally binding commitment to amend the Constitutioncan only come from the political institutions and the sovereignpeople who are empowered by the charter to amend theConstitution. The President nor any other member or office ofthe executive branch does not have the power to effect changesto the Constitution even if he wanted to in the paramountinterest of the country and of the people. Any commitment toany entity on the part of the President or his political appointeesto amend the Constitution is inherently ultra vires, because theExecutive Branch does not have the innate power to effectuatesuch changes on its own. Neither does the President have thepower to bind to positive action those whom the Constitutionentrusts the power to amend the charter, namely; the Congress,the delegates to a constitutional convention, and theelectorate.

Constitutional order cannot be sacrificed for expediency,even if in the name of peace in Mindanao. Assuming that the


executive branch has in good faith become intractablyconvinced that it is necessary to amend the Constitution in orderto obtain lasting peace in Mindanao, the consequent stepshould not be to make promises it has no power alone to keep,hoping against hope that the Congress and the voters wouldultimately redeem the promises. Since constitutionalamendments are involved, the ability of the executive branchto undertake any legally binding commitment to amend theConstitution can only be recognized, if at all, with the priorappropriate authorization of Congress, acting with the specifiedmajorities provided in Section 1(1), Article XVII of theConstitution.40 Under such a mechanism, any constitutionally-oriented concessions offered by the Philippine governmentwould contemporaneously bear the preliminary seal ofapproval by the people or institutions authorized to proposeamendments to the Constitution, subject to final ratificationby the people through a plebiscite.

The Government would have been spared of theembarrassment and outcry had it acted with more prudence byfirst securing the necessary political mandate to undertakecharter change for the benefit of Mindanao, instead of actingbrashly and rashly by acceding at the outset to the undertakingwithout consulting the Congress or the people. In the end, theissuance of the TRO by this Court proved highly providential, aseven the Government wound up seeing the proverbial lightbefore it was too late.

With the foregoing qualifications, I vote to dismiss thepetitions and register my dissent from the result reached bythe majority.

40 “Any amendment to, or revision of, this Constitution may beproposed by:

(1) The Congress, upon a vote of three-fourths of all its membersx x x.”

257PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CHICO-NAZARIO, SEPARATE OPINION

SEPARATE OPINION

Chico-Nazario, J.:

The piece of writing being assailed in these consolidatedPetitions is a peace negotiation document, namely theMemorandum of Agreement on the Ancestral Domain Aspectof the GRP-MILF Tripoli Agreement of Peace of 2001 (MOA).The Solicitor General explained that this document, preparedby the joint efforts of the Government of the Republic of thePhilippines (GRP) Peace Panel and the Moro Islamic LiberationFront (MILF) Peace Panel, was merely a codification ofconsensus points reached between both parties and theaspirations of the MILF to have a Bangsamoro homeland.1

Subsequently, the Solicitor General moved for the dismissal ofthe consolidated cases at bar based on changed circumstancesas well as developments which have rendered them moot,particularly the Executive Department’s statement that it wouldno longer sign the questioned peace negotiation document.2

Nonetheless, several parties to the case, as well as other sectors,continue to push for what they call a “complete determination”of the constitutional issues raised in the present Petitions.

I believe that in light of the pronouncement of the ExecutiveDepartment to already abandon the MOA, the issue of itsconstitutionality has obviously become moot.

The rule is settled that no question involving theconstitutionality or validity of a law or governmental act maybe heard and decided by the court unless there is compliancewith the legal requisites for judicial inquiry, namely: that thequestion must be raised by the proper party; that there mustbe an actual case or controversy; that the question must beraised at the earliest possible opportunity; and, that thedecision on the constitutional or legal question must benecessary to the determination of the case itself. But the mostimportant are the first two requisites.3

1 Respondent’s Manifestation and Motion, August 19, 2008.2 Id.3 Joya v. Presidential Commission on Good Government, G.R. No. 96541,

August 24, 1993, 225 SCRA 568, 575.


For a court to exercise its power of adjudication, there mustbe an actual case or controversy – one which involves a conflictof legal rights, an assertion of opposite legal claims susceptibleof judicial resolution; the case must not be moot or academic orbased on extra-legal or other similar considerations notcognizable by a court of justice. A case becomes moot andacademic when its purpose has become stale.4 An action isconsidered “moot” when it no longer presents a justiciablecontroversy because the issues involved have become academicor dead or when the matter in dispute has already been resolvedand hence, one is not entitled to judicial intervention unlessthe issue is likely to be raised again between the parties. Simplystated, there is nothing for the court to resolve as thedetermination thereof has been overtaken by subsequentevents.5

Such is the case here.

The MOA has not even been signed, and will never be. Itsprovisions will not at all come into effect. The MOA will foreverremain a draft that has never been finalized. It is now nothingmore than a piece of paper, with no legal force or binding effect.It cannot be the source of, nor be capable of violating, any right.The instant Petitions, therefore, and all other oppositions tothe MOA, have no more leg to stand on. They no longer presentan actual case or a justiciable controversy for resolution by thisCourt.

An actual case or controversy exists when there is a conflictof legal rights or an assertion of opposite legal claims, whichcan be resolved on the basis of existing law and jurisprudence.A justiciable controversy is distinguished from a hypotheticalor abstract difference or dispute, in that the former involves adefinite and concrete dispute touching on the legal relations ofparties having adverse legal interests. A justiciable controversyadmits of specific relief through a decree that is conclusive in

4 Id.5 Santiago v. Court of Appeals, G.R. No. 121908, January 26, 1998,

285 SCRA 16, 22.


character, whereas an opinion only advises what the law wouldbe upon a hypothetical state of facts.6

For the Court to still rule upon the supposedunconstitutionality of the MOA will merely be an academicexercise. It would, in effect, only be delivering an opinion oradvice on what are now hypothetical or abstract violations ofconstitutional rights.

In Abbas v. Commission on Elections,7 the 1976 TripoliAgreement and Republic Act No. 6734 (the Organic Act for theAutonomous Region in Muslim Mindanao) were challenged forpurported violations of the provisions of the Constitution onfreedom of religion. The Court held therein that it should notinquire into the constitutionality of a peace agreement whichwas already consummated (the 1976 Tripoli Agreement) and anOrganic Act which was already passed into law (RA No. 6734)just because of potential conflicts with the Constitution. Then,with more reason should this Court desist from ruling on theconstitutionality of the MOA which is unsigned, and now entirelyabandoned, and as such, cannot even have any potential conflictwith the Constitution.

The Court should not feel constrained to rule on thePetitions at bar just because of the great public interest thesecases have generated. We are, after all, a court of law, and notof public opinion. The power of judicial review of this Court isfor settling real and existent dispute, it is not for allaying fearsor addressing public clamor. In acting on supposed abuses byother branches of government, the Court must be careful thatit is not committing abuse itself by ignoring the fundamentalprinciples of constitutional law.

The Executive Department has already manifested to thisCourt, through the Solicitor General, that it will not sign theMOA in its present form or in any other form. It has declaredthe same intent to the public. For this Court to insist that theissues raised in the instant Petitions cannot be moot for theyare still capable of repetition is to totally ignore the assurance6 Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 426 (1998).7 G.R. Nos. 89651 and 89965, November 10, 1989, 179 SCRA 287.


given by the Executive Department that it will not enter intoany other form of the MOA in the future. The Court cannotdoubt the sincerity of the Executive Department on this matter.The Court must accord a co-equal branch of the governmentnothing less than trust and the presumption of good faith.

Moreover, I deem it beyond the power of this Court to enjointhe Executive Department from entering into agreementssimilar to the MOA in the future, as what petitioners and otheropponents of the MOA pray for. Such prayer once again requiresthis Court to make a definitive ruling on what are merehypothetical facts. A decree granting the same, without theCourt having seen or considered the actual agreement and itsterms, would not only be premature, but also too general tomake at this point. It will perilously tie the hands of theExecutive Department and limit its options in negotiating peacefor Mindanao.

Upon the Executive Department falls the indisputablydifficult responsibility of diffusing the highly volatile situationin Mindanao resulting from the continued clashes between thePhilippine military and Muslim rebel groups. In negotiating forpeace, the Executive Department should be given enoughleeway and should not be prevented from offering solutionswhich may be beyond what the present Constitution allows, aslong as such solutions are agreed upon subject to theamendment of the Constitution by completely legal means.

Peace negotiations are never simple. If neither party in suchnegotiations thinks outside the box, all they would arrive at is aconstant impasse. Thus, a counsel for one of the intervenorswho assert the unconstitutionality of the MOA8 had no choicebut to agree as follows:

ASSOCIATE JUSTICE QUISUMBING: Well, we realize theconstitutional constraints of sovereignty, integrity and the like,but isn’t there a time that surely will come and the life of ourpeople when they have to transcend even these limitations?

8 Dean Pacifico Agabin is the counsel for Intervenor Manuel A. RoxasIII.


DEAN AGABIN: Yes, we have seen it happen in several instances,Your Honor.

x x x x

ASSOCIATE JUSTICE QUISUMBING: And in pursuit of thatpurpose, the Supreme Court cannot look beyond the horizonand look for more satisfying result?

DEAN AGABIN: Well, if you mean by looking beyond the horizon,it would mean a violation of the provisions of the Constitution,then it should not be, Your Honor.

ASSOCIATE JUSTICE QUISUMBING: In some part, we have goneto Malaysia. We have gone to the OIC, and we have even goneto Libya.

DEAN AGABIN: Yes, Your Honor. But in all these, we have alwaysinsisted on preserving the territorial integrity of the country.

ASSOCIATE JUSTICE QUISUMBING: And this dicta or [dogma] isunassailable forever. There cannot be an exception.

DEAN AGABIN: It is unassailable under the present Constitution,Your Honor.

ASSOCIATE JUSTICE QUISUMBING: But, at least, you can alsoagree that the Constitution ought to be changed in order for acountry to fulfill its internal obligation as a matter of necessity.

DEAN AGABIN: Yes, if the people so will it, your Honor.

ASSOCIATE JUSTICE QUISUMBING: You remember how theemperor of Japan lost his divinity? They just changed theirConstitution, isn’t it?

DEAN AGABIN: Yes, it was enforced upon him by Mr. McArthur,and they have no choice.

ASSOCIATE JUSTICE QUISUMBING: Isn’t that a very good exampleof thinking outside the box? That one day even those who areunderground may have to think. But frankly now Dean, beforeI end, may I ask, is it possible to meld or modify ourConstitutional Order in order to have some room for the newlydeveloping international notions on Associative GovernanceRegulation Movement and Human Rights?


DEAN AGABIN: Yes. It is possible, Your Honor, with the consentof the people.

ASSOCIATE JUSTICE QUISUMBING: And, therefore, we vote it toa referendum or any consultation beforehand?

DEAN AGABIN: If there is such a proposal for or amendment orrevision of the Constitution, yes, Your Honor.

ASSOCIATE JUSTICE QUISUMBING: So, either initiative or CHA-CHA or CON-AS?

DEAN AGABIN: Yes, Your Honor.9

It must be noted that the Constitution has been in force forthree decades now, yet, peace in Mindanao still remained tobe elusive under its present terms. There is the possibility thatthe solution to the peace problem in the Southern Philippineslies beyond the present Constitution. Exploring this possibilityand considering the necessary amendment of the Constitutionare not per se unconstitutional. The Constitution itselfimplicitly allows for its own amendment by describing, underArticle XVII, the means and requirements therefor. In Tan v.Macapagal,10 where petitioners claim that the ConstitutionalConvention was without power to consider, discuss, or adoptproposals which seek to revise the Constitution through theadoption of a form of government other than the form outlinedin the then governing Constitution, the Court ruled that:

[A]s long as any proposed amendment is still unacted on by[the Convention], there is no room for the interposition ofjudicial oversight. Only after it has made concrete what itintends to submit for ratification may the appropriate case beinstituted. Until then, the Courts are devoid of jurisdiction.x x x

At this point, there is far from a concrete proposedamendment to the Constitution which the Court can takecognizance of, much less render a pronouncement upon.

9 TSN, pp. 603–611.10 150 Phil. 778, 785 (1972).


At most, the Court can only exhort the ExecutiveDepartment to keep in mind that it must negotiate and securepeace in Mindanao under terms which are most beneficial forthe country as a whole, and not just one group of Musliminsurgents. Transparency and consultation with all major players,which necessarily include affected local government units andtheir constituents, are essential to arrive at a more viable andacceptable peace plan. The nature and extent of any futurewritten agreements should be clearly established from the verybeginning, and the terms thereof carefully drafted and clearlyworded, to avoid misunderstandings or misconstructions by theparties and the public. If a document is meant to be a list ofconsensus points still subject to further negotiations, then itshould just simply state so.

As a final note, I find it necessary to stress that the Courtmust not allow itself to be mired in controversies affecting eachstep of the peace process in Mindanao. It is not within theprovince or even the competence of the Judiciary to tell theExecutive Department exactly what and what not, how and hownot, to negotiate for peace with insurgents. Given this kind ofsituation where war and peace hang in the balance, wherepeople’s lives are at stake, and the Executive Department, underits residual powers, is tasked to make political decisions in orderto find solutions to the insurgency problem, the Court shouldrespect the political nature of the issues at bar and exercisejudicial restraint until an actual controversy is brought beforeit.

In view of the foregoing, I vote for the GRANT of the Motionto Dismiss filed by the Solicitor General and, accordingly, forthe DISMISSAL of the Petitions at bar for being MOOT andACADEMIC.


DISSENTING OPINION

Velasco, Jr., J.:

It is a well-settled canon of adjudication that an issue assailingthe constitutionality of a government act should be avoidedwhenever possible.1 Put a bit differently, courts will not touchthe issue of constitutionality save when the decision upon theconstitutional question is absolutely necessary to the finaldetermination of the case, i.e., the constitutionality issue mustbe the very lis mota of the controversy.2 It is along the line setout above that I express my dissent and vote to dismiss theconsolidated petitions and petitions-in-intervention principallyseeking to nullify the Memorandum of Agreement on AncestralDomain (MOA-AD) proposed to be entered into by and betweenthe Government of the Republic of the Philippines (GRP) andthe Moro Islamic Liberation Front (MILF).

NON-JOINDER OF MILF: FATAL

The Rules of Court requires all actions to be brought by oragainst the real party interest. The requirement becomes allthe more necessary with respect to indispensable parties. For:

Indispensable parties are those with such interest in thecontroversy that a final decree would necessarily affect theirrights so that courts cannot proceed without their presence.All of them must be included in a suit for an action to prosperor for a final determination to be had.3

As it were, the MILF was not impleaded in this case exceptin G.R. No. 183962. But it would appear that MILF, doubtless areal party in interest in this proceedings, was not served a copyof and asked to comment on the petition in G.R. No. 183962.Significantly, when queried during the oral arguments on thenon-inclusion of the MILF, the petitioners feebly explained thatfirst, they could not implead the MILF because they did not1 Angara v. Electoral Commission, 63 Phil. 139 (1936).2 People v. Vera, 65 Phil. 50 (1937).3 DBM v. Kolonwel Trading, G.R. Nos. 175608, 175616, June 8, 2007.

265PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J VELASCO, JR., DISSENTING OPINION

know where it could be served with summons; and second,they feared that impleading the MILF would be futile as thegroup does not acknowledge the Court’s jurisdiction over it.

The importance of joining the MILF in this case cannot beover-emphasized. While the non-joinder of an indispensableparty will generally not deprive the court of jurisdiction overthe subject matter, the only prejudice to the winning party beingthe non-binding effect of the judgment on the unimpleadedparty, the situation at bar is different. Here, the unimpleadedparty is a party to the proposed MOA-AD no less and theprospective agreement sought to be annulled involves ONLYtwo parties – the impleaded respondent GRP and the MILF. Theobvious result is that the Court would not be able to fullyadjudicate and legally decide the case without the joinder ofthe MILF – the other indispensable party to the agreement. Thereason is simple. The Court cannot nullify a prospectiveagreement which will affect and legally bind one party withoutmaking said decision binding on the other contracting party.Such exercise is not a valid, or at least an effective, exercise ofjudicial power for it will not peremptorily settle the controversy.It will not, in the normal course of things, write finis to a dispute.4

Such consequent legal aberration would be the natural resultof the non-joinder of MILF. A court should always refrain fromrendering a decision that will bring about absurdities or willinfringe Section 1, Article 8 of the Constitution whichcircumscribes the exercise of judicial power.

PREMATURITY AND MOOTNESS

The MOA-AD is but a proposal on defined consensus points.The agreement has remained and will remain a mere proposalas the GRP has put off its signing permanently.5 The parties tothe MOA do not have, in short, the equivalent of, or what passesas, a perfected and enforceable contract. As things stand, theline dividing the negotiation stage and the execution stage4 Valenzuela v. Court of Appeals, 363 SCRA 779; Metropolitan Bank

and Trust Co., v. Alejo, 364 SCRA 812 (2001).5 Per statement made by Solicitor General Agnes Devanadera during

the Oral Arguments on August 28, 2008.


which would have otherwise conferred the character ofobligatoriness on the agreement is yet to be crossed. In a veryreal sense, the MOA-AD is not a document, as the term isjuridically understood, but literally a piece of paper which theparties cannot look up to as an independent source of obligation,the binding prestation to do or give and the corollary right toexact compliance. Yet, the petitioners would have the Courtnullify and strike down as unconstitutional what, for all intentsand purposes, is a non-existent agreement. Like a bill after itpasses third reading or even awaiting the approval signature ofthe President, the unsigned draft MOA-AD cannot plausibly bethe subject of judicial review, the exercise of which presupposesthat there is before the court an actual case or, in fine, ajusticiable controversy ripe for adjudication. A justiciablecontroversy involves a definite and concrete dispute touchingon the legal relations of parties who are pitted against eachother due to their demanding and conflicting legal interests.6

And a dispute is ripe for adjudication when the act beingchallenged has had direct adverse effect on the personchallenging it and admits of specific relief through a decreethat is conclusive in character. As aptly observed in Tan v.Macapagal,7 for a case to be considered ripe for adjudication, itis a prerequisite that something had been accomplished byeither branch of government before a court may step in. In theconcrete, the Court could have entered the picture if the MOA-AD were signed. For then, and only then, can we say there is aconsummated executive act to speak of.

As opposed to justiciable controversy, academic issues orabstract or feigned problems only call for advices on what thelaw would be upon a hypothetical state of facts.8 Were the Courtto continue entertain and resolve on the merits theseconsolidated petitions, the most that it can legally do is to render6 Guingona v. Court of Appeals, G.R. No. 125532, July 10, 1998, citing

cases.7 43 SCRA 77, cited in De Leon, PHILIPPINE CONSTITUTIONAL LAW, Vol. II, 2004

ed., p. 434.8 Guingona v. Court of Appeals, G.R. No. 125532. July 10, 1998, citing

Cruz, PHILIPPINE POLITICAL LAW, 1955 ed., pp. 241–42; John Hay People’sAlternative Coalition v. Lim, G.R. No. 119775, October 24, 2003.


an advisory opinion,9 veritably binding no one,10 but virtuallybreaching the rule against advisory opinion set out, if notimplied in Section 1, Article VIII charging “courts of justice [theduty] to settle actual controversies involving rights which arelegally demandable and enforceable.”

Prescinding from and anent the foregoing considerations,it can categorically be stated that what the petitions are pressingon the Court are moot and academic questions. An issue or acase becomes moot and academic when it ceases to present ajusticiable controversy so that a determination thereof wouldbe without practical use and value.11 In such cases, there is noactual substantial relief to which the petitioner would beentitled to and which would be negated by the dismissal of thepetition.12 To be sure, the mootness of a case would not, in allinstances, prevent the Court from rendering a decisionthereon.13 So it was that in a host of cases, we proceeded torender a decision on an issue otherwise moot and academic.Dela Camara v. Enage,14 Gonzales v. Marcos,15 Lacson v. Perez 16

Albania v. COMELEC,17 Acop v. Guingona II18 and David v.

9 Ticzon v. Video Post Manila, Inc. G.R. No. 136342. June 15, 2000,citing Bacolod-Murcia Planters’ Association, Inc. v. Bacolod-MurciaMilling Co., Inc., 30 SCRA 67, 68–69, October 31, 1969.

10 See Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: ACOMMENTARY, 1996 Ed.

11 Philippine Airlines v. Pascua, 409 SCRA 195.12 Vda. De Davao v. Court of Appeals, 426 SCRA 91 (2004), citing cases.13 Ticzon v. Video Post Manila, Inc., supra, citing ABS-CBN Broadcasting

Corporation v. Comelec, G.R. No. 133486, January 28, 2000; Salongav. Cruz-Pano, 134 SCRA 438, February 18, 1985.).

14 41 SCRA 1.15 65 SCRA 624.16 357 SCRA 756.17 435 SCRA 98.18 383 SCRA 577, citing Viola v. Alunan III, 276 SCRA 501[409].


Macapagal-Arroyo,19 among other cases, come to mind. Davidlists the exceptions to the rule on mootness, thus:

The “moot and academic” principle is not a magical formulathat can automatically dissuade the courts in resolving a case.Courts will decide cases, otherwise moot and academic, if:first, there is a grave violation of the Constitution; second, theexceptional character of the situation and the paramountpublic interest is involved; third, when constitutional issueraised requires formulation of controlling principles to guidethe bench, the bar, and the public; and fourth, the case iscapable of repetition yet evading review.

A perusal of the cases cited, however, readily reveals thatthe subject matters thereof involved justiciable controversies.In Dela Camara, for example, there was the challenged orderapproving an application for bail bond but at an excessiveamount. The case was rendered moot by the issuance of asubsequent order reducing the amount. In Gonzales, thepetition questioning the validity of the creation of the CCPComplex by then President Marcos via a executive order whichwas viewed as a usurpation of legislative power was mootedby the issuance of a presidential decree upon the declarationof martial law. In Lacson, assailed was the issuance ofProclamation No. 36 declaring a state rebellion; in Albania, thepetition to nullify the decision of the COMELEC annulling theproclamation of petitioner as municipal mayor was renderedmoot by the election and proclamation of a new set of municipalofficers; in Acop, the petition to exclude two police officersfrom the Witness Protection Program was rendered moot bythe fact that the coverage of the two officers under the programwas terminated; and in David, the petition challenging thevalidity of Presidential Proclamation (PP) 1017 declaring a stateof emergency was rendered moot by the issuance of PP 1021declaring that the state of national emergency has ceased.

The element of justiciable controversy is palpably absentin the petitions at bar. For, as earlier explained, there is reallyno MOA-AD to speak of since its perfection or effectivity wasaborted by supervening events, to wit: the TRO the Court issued19 G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489,

171424, May 3, 2006, 489 SCRA 160.


enjoining the Kuala Lumpur signing of the MOA and thesubsequent change of mind of the President not to sign andpursue the covenant. To repeat, there is, from the start, or fromthe moment the first petition was interposed, no actualjusticiable controversy to be resolved or dismissed, the MOA-AD having been unsigned. Be that as it may, there can hardly beany constitutional issue based on actual facts to be resolvedwith finality, let alone a grave violation of the Constitution tobe addressed. Surely the Court cannot reasonably formulateguiding and controlling constitutional principles, precepts,doctrines or rules for future guidance of both bench and barbased on a non-existing ancestral domain agreement or byanticipating what the executive department will likely do oragree on in the future in the peace negotiating table.

Some of my esteemed colleagues in the majority haveexpressed deep concern with the ramifications of a signed MOA-AD. Needless to stress, their apprehension as to suchramifications is highly speculative. Thus, judicial inquiry,assuming for the nonce its propriety, has to come later, againassuming that the peace instrument is eventually executed andchallenged. At its present unsigned shape, the MOA-AD canhardly be the subject of a judicial review.

The allegations of unconstitutionality are, for now, purelyconjectural. The MOA-AD is only a part of a lengthy peaceprocess that would eventually have culminated in the signingof a Comprehensive Compact. Per my count, the MOA-AD makesreference to a Comprehensive Compact a total of eight times.The last paragraph of the MOA-AD even acknowledges that,before its key provisions come into force, there would still bemore consultations and deliberations needed by the parties,viz:

Matters concerning the details of the agreed consensus [point]on Governance not covered under this Agreement shall bedeferred to, and discussed during, the negotiations of theComprehensive Compact.

SEPARATION OF POWERS TO BE GUARDED

Over and above the foregoing considerations, however, is thematter of separation of powers which would likely be disturbed


should the Court meander into alien territory of the executiveand dictate how the final shape of the peace agreement withthe MILF should look like. The system of separation of powerscontemplates the division of the functions of government intoits three branches: the legislative which is empowered to makelaws; the executive which is required to carry out the law; andthe judiciary which is charged with interpreting the law.20

Consequent to the actual delineation of power, each branch ofgovernment is entitled to be left alone to discharge its dutiesas it sees fit.21 Being one such branch, the judiciary, as JusticeLaurel asserted in Planas v. Gil,22 “will neither direct nor restrainexecutive [or legislative action].” Expressed in anotherperspective, the system of separated powers is designed torestrain one branch from inappropriate interference in thebusiness,23 or intruding upon the central prerogatives,24 ofanother branch; it is a blend of courtesy and caution, “a self-executing safeguard against the encroachment oraggrandizement of one branch at the expense of the other.”25

But this is what the petitioners basically seek: through theoverruling writs of the Court, to enjoin the Philippine PeaceNegotiating Panel, or its equivalent, and necessarily thePresident, from signing the proposed MOA-AD and fromnegotiating and executing in the future similar agreements.The sheer absurdity of the situation where the hands ofexecutive officials, in their quest for a lasting and honorablepeace, are sought to be tied lest they agree to somethingirreconcilable with the Constitution, should not be lost on theCourt.

Under our constitutional set up, there cannot be any seriousdispute that the maintenance of the peace, insuring domestic

20 Black’s Law Dictionary, 6th ed., p. 1305.21 Tan v. Macapagal, 43 SCRA 677.22 67 Phil. 62.23 Youn[g]stown Sheet & Tube Co. v. Sawyer, 343 U.S. 528, 635 (1952).24 US [v.] Munoz-Flores, 495 U.S. 385.25 Buckley v. Valeo, 424 U.S. 1.


tranquility26 and the suppression of violence are the domainand responsibility of the executive.27 Now then, if it beimportant to restrict the great departments of government tothe exercise of their appointed powers, it follows, as a logicalcorollary, equally important, that one branch should be leftcompletely independent of the others, independent not in thesense that the three shall not cooperate in the common end ofcarrying into effect the purposes of the constitution, but in thesense that the acts of each shall never be controlled by orsubjected to the influence of either of the branches.28

Favorably accommodating the petitioners under thepremises cannot but be viewed as a indirect attempt on thepart of the Court to control and dictate on the peace prerogativesof the executive branch, and in the process unduly impairingthat branch in the performance of its constitutional duties. Itwill distort the delicate balance of governance which theseparation of powers seeks to safeguard.

ONE LAST WORD

The Executive Secretary has categorically declared that thegovernment will not sign the MOA-AD,29 which, as couched,may indeed be constitutionally frail or legally infirm. But themore important point is that the challenged agreement is anunsigned document without effect and force whatsoever. Itconveys no right to and imposes no correlative obligation oneither negotiating party. As an unsigned writing, it cannot bedeclared unconstitutional, as some of my colleagues are wontto do.

Accordingly, I vote to DENY the petitions. The factual andlegal situations call for this disposition.26 Marcos v. Manglapus, 177 SCRA 668.27 Section 18, Article VII of the Constitution charges the President, as

Commnader in Chief of the Armed Forces of the Philippines, theduty of preventing or suppressing lawless violence, invasion orrebellion.

28 O’Donaghue v. US, 289 U.U. [U.S.] 516 (1933).29 Compliance dated September 1, 2008 of respondents.


DISSENTING OPINION

Nachura, J.:

I respectfully dissent from the ponencia of Justice CarpioMorales, even as I agree with its holding that the MOA-AD isnot an international agreement or unilateral declaration bindingon the Philippines under international law.

STATEMENT OF THE CASE

We are confronted with various petitions assailing theconstitutionality of the Memorandum of Agreement onAncestral Domain (MOA-AD) between the respondentGovernment of the Republic of the Philippines Peace Panel(GRP),1 and the Moro Islamic Liberation Front (MILF),2 to wit:

1. a petition for Prohibition and Mandamus with prayerfor the issuance of a Writ of Preliminary Injunction andTemporary Restraining Order (TRO) docketed as G.R. No.183591, filed by the province of North Cotabato3 againstrespondents GRP, Gen. Hermogenes Esperon, Jr.,4 andSecretary Eduardo Ermita,5 enjoining this Court to: (a)compel respondents to disclose the contents of theMOA-AD, (b) prohibit respondents from formally signingthe MOA-AD, or, in the alternative, (c) declare theinitialed MOA-AD as unconstitutional;

2. a petition for Prohibition and Mandamus with urgentprayer for the issuance of a Writ of PreliminaryInjunction and/or Temporary Restraining Order

1 Represented by Secretary Rodolfo Garcia, Atty. Leah Armamento,Atty. Sedfrey Candelaria, Ryan Mark Sullivan.

2 Breakaway group of the Moro National Liberation Front.3 Represented by Governor Jesus Sacdalan and/or Vice-Governor

Emmanuel Piñol, for and in his own behalf.4 In his capacity as Presidential Adviser on the Peace Process.5 In his capacity as Executive Secretary.

273PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION

6 Represented by the City Mayor of Zamboanga, Celso Lobregat. Otherpetitioners are Rep. Isabelle Climaco, District 1 of Zamboanga Cityand Rep. Erico Basilio A. Fabian, District 2, City of Zamboanga.

7 Represented by City Mayor Lawrence Lluch Cruz.8 Represented by Gov. Rolando E. Yebes and Vice-Governor Francis

H. Olvis.9 1st Congressional District.10 3rd Congressional District.11 Members of the Sangguniang Panlalawigan of Zamboanga del Norte

Province.

docketed as G.R. No. 183752 filed by the CityGovernment of Zamboanga, et al.,6 against respondents(except Sec. Ermita), enjoining this Court to: (a) compelrespondents to disclose the contents of the MOA-AD,(b) prohibit respondents from signing the MOA-AD, (c)exclude the City of Zamboanga from being part of theBangsamoro Juridical Entity (BJE), subject-matter of theMOA-AD, or, should the MOA-AD be signed, (d) declareit as null and void.

3. a petition for Injunction and/or Declaratory Relief withprayer for the issuance of a Writ of PreliminaryInjunction and/or Temporary Restraining Orderdocketed as G.R. No. 183893 filed by the City of Iligan7

against respondents, enjoining this Court to: (a) enjoinrespondents from signing the MOA-AD, or, in thealternative, from implementing the same, and (b)declare the MOA-AD as unconstitutional;

4. a petition for Certiorari, Mandamus and Prohibition withprayer for issuance of Writ of Injunction and/orTemporary Restraining Order docketed as G.R. No.183951 filed by provincial government of ZamboangaDel Norte,8 Rep. Cecilia Jalosjos Carreon,9 Rep. Cesar G.Jalosjos,10 and Seth Frederick Jalosjos, Fernando R.Cabigon, Jr., Uldarico Mejorada II, Edionar Zamoras,Edgar J. Baguio, Cedric Adriatico, Felixberto Bolando,Joseph Brendo Ajero, Norbideiri Edding, AnecitoDarunday, Angelica Carreon, and Luzviminda Torrino11


against respondents (except Sec. Ermita), enjoining thisCourt to: (a) declare the MOA-AD as null and void andwithout operative effect, and (b) restrain respondentsfrom executing the MOA-AD.

5. a petition for Prohibition filed by Ernesto Maceda,Jejomar Binay, and Aquilino L. Pimentel III againstrespondents (except Gen. Esperon and Sec. Ermita) andthe MILF Peace Negotiating Panel,12 enjoining this Courtto: (a) prohibit and permanently enjoin respondentsfrom formally signing the MOA-AD or any otheragreement derive therefrom or with terms similarthereto as well as from executing any of its provisions,and (b) nullify the MOA-AD for being contrary to theConstitution and the laws;

6. a petition-in-intervention for Prohibition filed by Hon.Marino Ridao and Kisin Buxani, residents of CotabatoCity, lodged with the petitions of the Province ofCotabato and the City of Zamboanga in G.R. Nos. 183591and 183752, enjoining this Court to: (a) prohibitrespondents from signing the MOA-AD, (b) declare theMOA-AD as null and void, or, in the alternative, (c)exclude all the 37 barangays of Cotabato City from thecoverage of the BJE territory;

7. a petition-in-intervention for Prohibition, Mandamusand Injunction filed by the Municipality of Linamon,13

enjoining this Court to: (a) permanently restrainrespondents from signing the MOA-AD, or (b)permanently restrain respondents from implementingthe initialed MOA-AD, if and when the MILF insists onits enforcement, and (c) declare the MOA-AD asunconstitutional.

8. a petition-in-intervention for Prohibition filed by theCity Government of Isabela, Basilan Province,14

12 Represented by its Chairman Mohagher Iqbal.13 Represented by Mayor Noel Deano.14 Represented by Mayor Cherrylyn Santos-Akbar.


enjoining this Court to: (a) prohibit respondents fromsigning the MOA-AD, in the alternative, (b) declare theMOA-AD as null and void, and (c) exclude all the 45barangays of the City of Isabela from the BJE territory;

9. a petition-in-intervention for Prohibition filed by theprovince of Sultan Kudarat,15 enjoining this Court to: (a)prohibit respondents from signing the MOA-AD, (b)declare the MOA-AD as null and void, and (c) excludethe 214 barangays of Sultan Kudarat Province from theBJE territory;

10. a petition-in-intervention for Prohibition filed bymembers of the bar Carlos Gomez, Gerardo Dilig,Nesario Awat, Joselito Alisuag, and Richalez Jagmis, allfrom Puerto Princesa City, Palawan, enjoining this Courtto: (a) prohibit respondents from implementing theMOA-AD which they had signed with the MILF PeaceNegotiating Panel, in the alternative, (b) declare theMOA-AD as null and void, and (c) exclude the Provinceof Palawan and the Municipalities of Bataraza andBalabac from the BJE territory;

11. a petition-in-intervention for Prohibition filed by RuyElias Lopez as a member of the Bagobo tribe ofindigenous people living in Mindanao, enjoining thisCourt to: (a) permanently enjoin respondents fromsigning the MOA-AD, and, in the alternative, (b) declarethe MOA-AD as unenforceable against other indigenouspeoples;

12. a petition-in-intervention for Mandamus andProhibition filed by Senator Manuel Roxas, enjoiningthis Court to: (a) direct respondents to publicly revealor disclose the contents of the MOA-AD, including alldocuments pertinent, related, attached thereto, andorder respondents to furnish petitioner-in-interventionSen. Roxas with the draft and/or final, complete, official,and initialed copies of said MOA-AD, and (b) commandrespondents from acting on and signing andimplementing the MOA-AD; and

15 Represented by Gov. Suharto Mangudadatu.


13. a petition-in-intervention for Prohibition filed byformer Senator Franklin Drilon and Atty. Adel Tamano,enjoining this Court to prohibit and permanently enjoinrespondents from further signing, executing, andentering into the MOA-AD or any other agreement withterms similar to the MOA and/or from proceeding orimplementing the MOA-AD.

These cases have been consolidated and jointly heard onoral argument by the Court.

In all, the main petitions and the petitions-in-interventionbewail the lack of public consultation and invoke violation ofthe people’s right to information16 in the drafting of the MOA-AD. The numerous petitions pray for the following reliefs:

1. To prevent the signing of, and, in the alternative,implementation of the initialed, MOA-AD;

2. To be furnished copies of the MOA-AD grounded ontheir right to information on matters of public concern;

3. To exclude certain cities and barangays from the BJEterritory;

4. To declare the MOA-AD as unconstitutional riddled as itis with constitutional infirmities; and

5. As regards Intervenor Lopez, to declare the MOA-ADunenforceable against indigenous peoples.

THE FACTS

Before anything else, however, the difficult facts leading tothis cause celebre.

16 Article III, Section 7 of the Constitution:

SEC. 7. The right of the people to information on matters of publicconcern shall be recognized. Access to official records and todocuments and papers pertaining to official acts, transactions, ordecisions, as well as government research data used as basis forpolicy development shall be afforded the citizen, subject to suchlimitations as may be provided by law.


The advent of the 1987 Constitution captured and reflectedour nation’s quest for true and lasting peace in MuslimMindanao. The new constitution included authority for thecreation of an Autonomous Region of Muslim Mindanao(ARMM).17 This trailblazing legal framework was actuallycatalyzed, as early as 1976, with the signing of the TripoliAgreement in Libya between the GRP and the MNLF.

On August 1, 1989, Congress passed and approved RepublicAct No. 6734 entitled “An Act Providing for an Organic Act for17 Article X, Sections 15, 18 and 19 of the Constitution:

SEC. 15. There shall be created autonomous regions in MuslimMindanao and in the Cordilleras consisting of provinces, cities,municipalities, and geographical areas sharing common anddistinctive historical and cultural heritage, economic and socialstructures, and other relevant characteristics within the frameworkof this Constitution and the national sovereignty and territorialintegrity of the Republic of the Philippines.

SEC. 18. The Congress shall enact an organic act for each autonomousregion with the assistance and participation of the regionalconsultative commission composed of representatives appointedby the President from a list of nominees from multi-sectoral bodies.The organic act shall define the basic structure of the governmentfor the region consisting of the executive department and legislativeassembly, both of which shall be elective and representative of theconstituent political units. The organic act shall likewise providefor special courts with personal, family and property lawjurisdiction consistent with the provisions of this Constitutionand national laws.

The creation of the autonomous region shall be effective whenapproved by majority of the votes cast by the constituent units in aplebiscite called for the purpose, provided that only provinces,cities, and geographic areas voting favorably in such plebisciteshall be included in the autonomous region.

SEC. 19. The first Congress elected under this Constitution shall,within eighteen months from the time of organization of bothHouses, pass the organic acts for the autonomous regions inMuslim Mindanao and the Cordilleras.


the Autonomous Region in Muslim Mindanao.” Out of the 13provinces and nine cities subjected to a plebiscite conductedon November 19, 1989, only four provinces voted for theirinclusion in the ARMM, namely: Provinces of Maguindanao,Lanao Del Sur, Sulu and Tawi-Tawi.

Then, on September 2, 1996, the almost elusive pursuit ofpeace appeared to be within reach–the GRP and the MNLFentered into and signed a total and final peace agreementimplementing the 1976 Tripoli Agreement entitled “The FinalAgreement on the Implementation of the 1976 TripoliAgreement between the Government of the Republic of thePhilippines and the Moro National Liberation Front.” Consistentthereto, on March 31, 2001, Congress amended the first OrganicAct (RA No. 6734) and enacted RA No. 9054 for the expansion ofthe ARMM. The plebiscite for the ratification of the amendedOrganic Act conducted on August 14, 2001 resulted in theaddition of Basilan Province and Marawi City to the originalfour provinces comprising the ARMM.

Peace was almost at hand, but not quite. The MILF, a break-away faction of the MNLF, wanted a separate peace. It rejectedthe final peace agreement between the GRP and the MNLF, andcontinued their armed hostilities. Once again, in the quest forlasting peace, the GRP initiated peace talks with the MILF. OnJuly 18, 1997, the Agreement on the General Cessation ofHostilities was signed between the GRP and the MILF PeacePanels. Next, on August 27, 1998, the General Framework ofAgreement of Intent was signed by both parties at the DawahCenter, Crossing Simuay, Sultan Kudarat, Maguindanao.

All these agreements, notwithstanding, at the end of 1999to 2000, the MILF fortified its stronghold in 46 camps, attacked anumber of municipalities in Central Mindanao, and took controlof the town hall of Kauswagan, Lanao Del Norte. Governmentresponded by twice declaring an “all-out war” against the MILF.On April 30, 2000, the MILF unilaterally suspended the GRP-MILF Peace Talks and, likewise, declared an all-out war againstthe GRP and ordered an all-out offensive on Armed Forces ofthe Philippines (AFP) camps all over Mindanao. Variousattempts at a peace settlement were unsuccessful.


On February 28, 2001, President Arroyo issued ExecutiveOrder No. 3 defining the policy and administrative structure forthe government’s comprehensive peace effort, in relevant part:

SEC. 3. The Three Principles of the Comprehensive Peace Process.The comprehensive peace process shall continue to begoverned by the following underlying principles:

a. A comprehensive peace process should be community-based, reflecting the sentiments, values and principlesimportant to all Filipinos. Thus, it shall be defined not bythe government alone, nor by the different contendinggroups only, but by all Filipinos as one community.

b. A comprehensive peace process aims to forge a new socialcompact for a just, equitable, humane and pluralisticsociety. It seeks to establish a genuinely pluralistic society,where all individuals and groups are free to engage inpeaceful competition for predominance of their politicalprograms without fear, through the exercise of rights andliberties guaranteed by the Constitution, and where theymay compete for political power through an electoralsystem that is free, fair and honest.

c. A comprehensive peace process seeks a principled andpeaceful resolution to the internal armed conflicts, withneither blame nor surrender, but with dignity for allconcerned.

SEC. 4. The Six Paths to Peace. – The components of thecomprehensive peace process comprise the processes knownas the “Paths to Peace.” These components processes areinterrelated and not mutually exclusive, and must thereforebe pursued simultaneously in a coordinated and integratedfashion. They shall include, but may not be limited to, thefollowing:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS.This component involves the vigorous implementation ofvarious policies, reforms, programs and projects aimedat addressing the root causes of internal armed conflictsand social unrest. This may require administrative action,new legislation, or even constitutional amendments.


b. CONSENSUS-BUILDING AND EMPOWERMENT FOR PEACE.This component includes continuing consultations onboth national and local levels to build consensus for apeace agenda and process, and the mobilization andfacilitation of people’s participation in the peace process.

c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENTREBEL GROUPS. This component involves the conduct offace-to-face negotiations to reach peaceful settlement withthe different rebel groups. It also involves the effectiveimplementation of peace agreements.

d. PROGRAMS FOR RECONCILIATION, REINTEGRATION INTOMAINSTREAM SOCIETY AND REHABILITATION. Thiscomponent includes programs to address the legal statusand security of former rebels, as well as community-basedassistance programs to address the economic, social andpsychological rehabilitation needs of former rebels,demobilized combatants and civilian victims of theinternal armed conflicts.

e. ADDRESSING CONCERNS ARISING FROM CONTINUINGARMED HOSTILITIES. This component involves the strictimplementation of laws and policy guidelines, and theinstitution of programs to ensure the protection of non-combatants and reduce the impact of the armed conflicton communities found in conflict areas.

f. BUILDING AND NURTURING A CLIMATE CONDUCIVE TOPEACE. This component includes peace advocacy andpeace education programs, and the implementation ofvarious confidence-building measures.

In addition thereto, President Arroyo issued Memorandumof Instructions to the GRP Peace Panel providing the GeneralGuidelines on the Peace Talks with the MILF.

On April 3, 2001, as a consequence of the signing of theAgreement on the General Framework for the Resumption ofPeace Talks between the GRP and the MILF on March 24, 2001,in Kuala Lumpur, Malaysia, the MILF suspended all militaryactions in their areas of operation.


Subsequently, two rounds of Formal Peace Talks occurredin June 20–22, 2001 and August 5–7, 2001, respectively, with thelatter resulting in the signing of the Implementing Guidelineson the Security Aspect of the GRP-MILF Tripoli Agreement onPeace of 2001 and effectively placing the parties on a cease-firestatus. This agreement contained three strands, specifically:(1) the Security Aspect; (2) Humanitarian, Rehabilitation andDevelopment Aspects; and (c) the Ancestral Domain Aspect.And as previously stated, RA No. 9054 amending the OrganicAct was ratified with the inclusion of Basilan Province andMarawi City in the ARMM.

Yet, incidences of violence and violation of the cease-firepact by the MILF continued to occur. On July 19, 2003, the GRPand the MILF once again agreed to a cessation of hostilities andresume peace talks. In connection therewith, on September 2,2003, President Arroyo issued Memorandum of Instructions tothe GRP Peace Panel, i.e., Revised General Guidelines on thePeace Talks with the Moro Islamic Liberation Front.

Therefrom, the continuation of several rounds of previouslyheld exploratory talks was held on June 20–21, 2005 at KualaLumpur, Malaysia and resulted in the forging of clear parametersand principles to be pursued on the Governance Strand (Aspect)of the Ancestral Domain. This was followed by another roundof Exploratory Talks on September 15–16, 2005 also in KualaLumpur, Malaysia, where both panels adopted the points onthe same strand/aspect of Ancestral Domain provided in thePeace Agreement of 2001 between the GRP and the MILF.

The peace process finally culminated in the drafting of thesubject MOA-AD intended to be signed in Kuala Lumpur,Malaysia on August 5, 2008.

News report began to appear on the contents of the MOA-AD and its scheduled signing on August 5, 2008. Main petitioners,except petitioners in G.R. No. 183962, all scrambled to procurea copy of the draft of this MOA-AD. Inability to secure copiesthereof and a categorical response from respondent GRP,prompted the filing of these petitions. On the eve of thescheduled signing, by Resolution dated August 4, 2008, weissued a Temporary Restraining Order commanding and


directing respondents and their agents to cease and desist fromformally signing the MOA-AD. We likewise required the Officeof the Solicitor General (OSG) to submit to the Court andpetitioners the official copy of the final draft of the MOA-AD.On August 8, 2008, the OSG filed its Compliance with ourResolution.

Meanwhile, outbreak of violence occurred in some of theherein petitioner local government units. Oral arguments wereheld on August 15, 22, and 29, 2008. On August 19, 2008, the OSGfiled a Manifestation and Motion to Dismiss the petitions onthe ground that the Executive Department has declared it willthoroughly review MOA-AD and pursue further negotiationsaddressing all objections hurled against said document. TheOSG’s motion was greatly opposed by the petitioners.

On August 28, 2008, the Executive Department pronouncedthat it would no longer sign the MOA-AD. On the last day of theoral arguments, Madame Solicitor General, on interpellation,declared that the Executive Department, specifically,respondent Sec. Ermita has declared that the MOA-AD “will notbe signed in this form, or in any other form.” Moreover, onSeptember 3, 2008, President Arroyo dissolved the GRP PeacePanel. Finally, in compliance to the Court’s directive upontermination of the oral arguments, the parties’ submitted theirrespective Memoranda.

Petitioners and petitioners-in-intervention maintain thatdespite the supervening events and foregoing declarations andacts of the Executive Department, there remains a justiciablecontroversy, a conflict of legal rights by the parties that oughtto be adjudicated by this Court. They asseverate that,supervening events notwithstanding, the cases at bench havenot been mooted, or, even if so, the issues they raised fallwithin the exceptions to the moot and academic principle.Consequently, even with the dissolution of the GRP Peace Paneland the positive and unequivocal declaration by the ExecutiveDepartment that the MOA-AD will not be signed in this form orin any other form, the constitutionality of the MOA-AD maystill be ruled upon.


At the other end of the spectrum, however, the OSG isadamant that this contentious MOA-AD is, in fact, only acodification of “consensus points” and does not, in any way,create rights and obligations that must be declared infirm, andthus, is not ripe for adjudication by this Court. Furthermore,the OSG insists that the petitions and petitions-in-interventionmust be dismissed on the ground of mootness, superveningevents having rendered the assailed MOA-AD inexistent andall the reliefs prayed for satisfied and fulfilled. In addition, theOSG argues that a ruling by this Court on the constitutionality ofthe MOA-AD violates the doctrine of separation of powers asthe negotiation of the MOA-AD is embraced in the President’spowers and in the nature of a political question, outside thepale of judicial review.

THE ISSUES

From the pleadings and as delineated on oral arguments, theissues raised are both procedural and substantive, namely

1. Procedural

(i) Whether petitioners and petitioners-in-intervention have locus standi;

(ii) Whether the petitions and petitions-in-intervention continue to present a justiciablecontroversy still ripe for adjudication; and

(iii) Whether the petitions and petitions-in-intervention have become moot and academic.

2. Substantive

(i) Whether the MOA-AD is unconstitutional;

(ii) Whether the GRP Peace Panel (respondents)committed grave abuse of discretion amounting tolack or excess of jurisdiction when it negotiated andinitialed the MOA-AD.

I submit that because of supervening events, the petitionsand petitions-in-intervention are no longer ripe foradjudication and that these cases have been rendered mootand academic. Accordingly, the petitions should be dismissed.


I. Procedural

i. Locus Standi

Our pronouncements in David v. Macapagal-Arroyo18 areinstructive:

The difficulty of determining locus standi arises in public suits.Here, the plaintiff who asserts a public right in assailing anallegedly illegal official action, does so as a representative ofthe general public. He may be a person who is affected nodifferently from any other person. He could be suing as astranger, or in the category of a citizen, or taxpayer. In eithercase, he has to adequately show that he is entitled to seekjudicial protection. In other words, he has to make out asufficient interest in the vindication of the public order andthe securing of relief as a citizen or taxpayer.

x x x x

However, to prevent just about any person from seeking judicialinterference in any official policy or act with which hedisagreed with, and thus hinders the activities of governmentalagencies engaged in public service, the United State SupremeCourt laid down the more stringent direct injury test in ExParte Levitt, later reaffirmed in Tileston v. Ullman. The sameCourt ruled that for a private individual to invoke the judicialpower to determine the validity of an executive or legislativeaction, he must show that he has sustained a direct injury as aresult of that action, and it is not sufficient that he has a generalinterest common to all members of the public.

This Court adopted the direct injury test in our jurisdiction. InPeople v. Vera, it held that the person who impugns the validityof a statute must have a personal and substantial interest inthe case such that he has sustained, or will sustain direct injuryas a result. The Vera doctrine was upheld in a litany of cases,such as, Custodio v. President of the Senate, Manila Race HorseTrainers Association v. De la Fuente, Pascual v. Secretary of PublicWorks and Anti-Chinese League of the Philippines v. Felix.

18 G.R. No. 171396, May 3, 2006, 489 SCRA 160.


However, being a mere procedural technicality, the requirementof locus standi may be waived by the Court in the exercise of itsdiscretion. This was done in the 1949 Emergency Powers Cases,Araneta v. Dinglasan, where the transcendental importance ofthe cases prompted the Court to act liberally. Such liberalitywas neither a rarity nor accidental. In Aquino v. Comelec, thisCourt resolved to pass upon the issues raised due to the far-reaching implications of the petition notwithstanding itscategorical statement that petitioner therein had nopersonality to file the suit. Indeed, there is a chain of caseswhere this liberal policy has been observed, allowing ordinarycitizens, members of Congress, and civic organizations toprosecute actions involving the constitutionality or validityof laws, regulations and rulings.

x x x x

By way of summary, the following rules may be culled from thecases decided by this Court. Taxpayers, voters, concernedcitizens, and legislators may be accorded standing to sue,provided that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegaldisbursement of public funds or that the tax measure isunconstitutional;

(3) for voters, there must be a showing of obvious interest inthe validity of the election law in question;

(4) for concerned citizens, there must be a showing that theissues raised are of transcendental importance whichmust be settled early; and

(5) for legislators, there must be a claim that the official actioncomplained of infringes upon their prerogatives aslegislators.

The test we have laid down is whether the party has allegedsuch a personal stake in the outcome of the controversy as toassure that concrete adverseness which sharpens thepresentation of issues upon which the court so largely depends


for illumination of difficult questions.19 When an individualsues as a citizen, he must allege that he has been or is about tobe subjected to some burdens or penalties by reason of thestatute or act complained of.20 When the issue concerns a publicright, it is sufficient that the petitioner is a citizen and has aninterest in the execution of the laws.21

The petitioners and petitioners-in-intervention claim locusstandi with their invocation of the transcendental importanceof the issues involved and their assertion of public rights toinformation and to consultation.

Considering that the Court has discretion to relax thisprocedural technicality, and given the liberal attitude it hasadopted in a number of earlier case, we acknowledge the legalstanding of the petitioners herein.ii. Ripeness for Adjudication

A mandatory requirement for the Court’s exercise of the powerof judicial review is the existence of an actual case orcontroversy. An actual case or controversy is a conflict of legalrights, an assertion of opposite legal claims which can beresolved on the basis of existing law and jurisprudence.22 Thecontroversy must be definite and concrete, bearing upon thelegal relations of parties who are pitted against each other dueto their adverse legal interests.23

But it is not enough that the controversy exists at the outset.To qualify for adjudication, it is necessary that the actualcontroversy be extant at all stages of review, not merely at thetime the complaint is filed.24 This is to say that the case is ripefor judicial determination.19 Province of Batangas v. Romulo, G.R. No. 152772 [152774], May 27,

2004.20 Francisco v. House of Representatives, 460 Phil. 830, 896 (2003).21 Supra note 18.22 Guingona v. Court of Appeals, G.R. No. 125532, July 10, 1998.23 John Hay People’s Alternative Coalition v. Lim, G.R. No. 119775,

October 24, 2003.24 Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008), citing

Arizonians for Official English v. Arizona, 117 S. Ct. 1055.


In Guingona v. Court of Appeals,25 we had occasion todeclare:

Closely related to the requirement of “actual case,” Bernascontinues, is the second requirement that the question is “ripe”for adjudication. A question is ripe for adjudication when theact being challenged has had a direct adverse effect on theindividual challenging it. Thus, in PACU v. Secretary of Education,the Court declined to pass judgment on the question of thevalidity of Section 3 of Act No. 2706, which provided that aprivate school may be opened to the public, it must first obtaina permit from the secretary of education, because all thepetitioning schools had permits to operate and were actuallyoperating, and none of them claimed that the secretary hadthreatened to revoke their permit.

In Tan v. Macapagal, the Court said that Petitioner Gonzales“had the good sense to wait” until after the enactment of thestatute [Republic Act No. 4913 (1967)] requiring the submissionto the electorate of certain proposed amendments to theConstitution [Resolution Nos. 1 and 3 of Congress as aconstituent body (1967)] before he could file his suit. It wasonly when this condition was met that the matter became ripefor adjudication; prior to that stage, the judiciary had to keepits hands off.

The doctrine of separation of powers calls for each branch ofgovernment to be left alone to discharge its duties as it seesfit. Being one such branch, the judiciary, Justice Laurel asserted,“will neither direct nor restrain executive [or legislative action]x x x.” The legislative and the executive branches are notallowed to seek advice on what to do or not to do; thus, judicialinquiry has to be postponed in the meantime. Before a courtmay enter the picture, a prerequisite is that something hasbeen accomplished or performed by either branch. Then mayit pass on the validity of what has been done but, then again,only “when x x x properly challenged in an appropriate legalproceeding.”

In the case at bench, there is no gainsaying that at the timeof the filing of the initial petitions up to the issuance by this25 Supra note 22.


Court of the Temporary Restraining Order, there was an actualextant controversy. The signing of the MOA-AD in Malaysia hadbeen scheduled; several foreign dignitaries were invited tograce the ceremony. The timeliness of the exercise of power bythe Court may have prevented a possible constitutionaltransgression. It was so timely an exercise of judicial reviewover an actual controversy by the Court such that it may haveprovided the impetus sufficient for the Executive Departmentto “review” its own acts, and to decided, subsequently, to abortthe entire MOA-AD.

However, supervening events effectively eliminated theconflict of rights and opposite legal claims. There is no longeran actual case or controversy between the parties. The GRPPeace Panel, respondents in these consolidated cases, has beendisbanded by the President, along with the resoundingdeclaration that “the MOA-AD will not be signed in its presentform, or in any other form.” The Memorandum issued byExecutive Secretary Ermita to the Solicitor General isunequivocal: “No matter what the Supreme Court ultimatelydecides, the government will not sign the MOA.”

The subsequent events were sufficient to alter the courseof these judicial proceedings. The President’s decision not tosign the MOA-AD may even be interpreted as a rectification offlawed peace negotiations by the panel. But to this Court, it isclearly a supervening event that affects the ripeness of thecase for adjudication. With an abandoned and unsigned MOA-AD and a dissolved peace Panel, any purported controversy hasvirtually disappeared. Judicial review cannot be exercisedwhere the incipient actual controversy does not remain extantuntil the termination of the case; this Court cannot providereliefs for controversies that are no longer there.

After the mandamus aspect of the initial petitions had beensatisfied, what remains are basically the petitions for certiorariand prohibition.26 The reliefs prayed for include the declaration

26 The records show pleadings filed by two Respondents-in-Intervention, namely: the Muslim Legal Assistance Foundation, Inc.and the Consortium of Bangsamoro Civil Society, represented byits Chairman Guiamel M. Alim, and Bangsamoro Women SolidarityForum, represented by its Chair Tarhata M. Maglangit. In their


of nullity of the MOA-AD and the prohibition on the membersof the Peace Panel from signing the MOA-AD.

These reliefs are unavailing, because the peace Panel hasbeen dissolved and, by the nature of things, renderedpermanently unable to sign any agreement. On the other hand,the MOA-AD sought to be nullified does not confer any rightsnor imposes any duties. It is, as of today, non-existent.

In Montesclaros v. COMELEC,27 we held that a proposed billis not subject to judicial review, because it is not a law. Aproposed bill creates no right and imposes no duty legallyenforceable by the Court. A proposed bill having no legal effectviolates no constitutional right or duty. The Court has no powerto declare a proposed bill constitutional or unconstitutionalbecause that would be in the nature of rendering an advisoryopinion on a proposed act of Congress. This ruling finds a parallelin a proposed agreement to be entered into by the ExecutiveDepartment which has been aborted, unsigned, and “will notbe signed in its present form or in any other form.”

iii. Mootness

A moot and academic case is one that ceases to present ajusticiable controversy by virtue of supervening events, so thata declaration thereon would be of no practical value. Generally,courts decline jurisdiction over such case, or dismiss it on groundof mootness.28

Thus, in Gonzales v. Narvasa,29 where the constitutionalityof the creation of the Preparatory Commission on ConstitutionalReform (PCCR) was questioned, the Court dismissed the

respective memorandum, these two intervenors uniformly pray forthe lifting of the temporary restraining order issued by this Court,and to require the Executive Department to fulfill its obligationunder the MOA-AD and continue with the peace talks with the MILFwith the view of forging a Comprehensive Compact.

27 G.R. No. 152295, July 9, 2002.28 David v. Macapagal-Arroyo, supra note 18.29 G.R. No. 140635 [140835], August 14, 2000.


petition because by then, the PCCR had ceased to exist, havingfinished its work and having submitted its recommendationsto then President Estrada. In Abbas v. COMELEC,30 we refusedto rule on a perceived potential conflict between provisions ofthe Muslim Code and those of the national law.

However, it is axiomatic that courts will decide cases,otherwise moot and academic, if: first, there is a grave violationof the Constitution; second, the exceptional character of thesituation and the paramount public interest involved; third,when the constitutional issue raised requires formulation ofcontrolling principles to guide the bench, the bar and the public;or fourth, when the case is capable of repetition yet evasive ofreview.31

As to the first exception, there is no violation of theConstitution that will justify judicial review despite mootness,because the MOA-AD has not been signed – and will not besigned. The eminent Justice Antonio T. Carpio, in his separateopinion, even as he expressed fears of numerous “drasticchanges” in the Constitution, acknowledges that these will takeplace only IF the MOA-AD will be signed. The scholarly ponenciaconcludes with the finding that the MOA-AD is unconstitutional,obviously referring to its provisions. So does the separateopinion of Justice Ruben T. Reyes. But, to repeat, the MOA-ADis, as of today, non-existent. Thus, as it is, these dreadedconstitutional infractions are, at best, anticipatory, hypotheticalor conjectural.

Neither will the second exception apply. The issue ofparamount public interest will arise only IF the MOA-AD issigned. With the Peace Panel dissolved, and with theunequivocal pronouncement of the President that the MOA-AD will not be signed, there is no occasion to speak of theexceptional or extraordinary character of the controversy aswould render the case ripe for resolution and susceptible ofjudicial determination.

30 G.R. No. 89651, November 10, 1989, 179 SCRA 287.31 David v. Macapagal-Arroyo, supra note 18.


Given the events that led to the issuance by the Court of aTRO in order to stop the signing of the MOA-AD in Malaysia onAugust 5, 2008, it would appear that there is a need for theCourt to formulate controlling principles, precepts and rules toguide the bench, the bar and the public – particularly a peacenegotiating panel – in future peace talks. However, a scrutinyof the factual antecedents of this case reveals that no suchimperative exists.

It is well to note that Executive Order No. 3, which createdthe GRP Peace Panel, explicitly identifies the Constitution asthe basic legal framework for the peace negotiations. It statesthat the GRP Peace Panel was created with the primary objectiveto attain “a just, comprehensive and enduring peace under arule of law and in accordance with constitutional processes,”32

with “a need to further enhance the contribution of civil societyto the comprehensive peace process by institutionalizing thepeople’s participation.”33 The same Executive Order providessufficient standards to guide the GRP Peace Panel in theperformance of its avowed work.

Then, there is the March 1, 2001 Memorandum ofInstructions from the President, followed by the Memorandumof Instructions dated September 8, 2003. Common to theinstructions is the provision that the negotiation shall beconducted “in accordance with the mandate of the Constitution,the Rule of Law, and the Principles of Sovereignty and TerritorialIntegrity of the Republic of the Philippines.” These are adequateguidelines for the GRP Peace panel; it would be superfluous forthe Court to issue guidelines which, presumably, will be similarto the ones already in existence, aside from possibly trenchingon the constitutional principle of separation of powers.

If the respondents-members of the GRP Peace Panel, inthe conduct of the negotiation, breached these standards orfailed to heed the instructions, it was not for lack of guidelines.In any event, the GRP Peace Panel is now disbanded, and theMOA-AD unsigned and “not to be signed.” There is no necessity

32 1st WHEREAS clause, EXECUTIVE ORDER No. 3.33 Last WHEREAS clause, EXECUTIVE ORDER No. 3.


for this Court to issue its own guidelines as these would be, inall probability, repetitive of the executive issuances.

The fourth exception, that the issue is “capable of repetitionyet evasive of review,” is likewise inapplicable in this case. Inthis connection, we recall Sanlakas v. Reyes,34 where the Courtdismissed the petitions which assailed as unconstitutionalProclamation No. 427, declaring a state of rebellion, and GeneralOrder No. 4, after the President had issued Proclamation No.435 declaring that the state of rebellion had ceased to exist.

Apart from the brilliant ponencia of Justice Dante O. Tinga,particularly illuminating is the separate opinion of Chief JusticeArtemio V. Panganiban when he wrote:

While the Petitions herein have previously embodied a livecase or controversy, they now have been rendered extinct bythe lifting of the questioned issuances. Thus, nothing is gainedby breathing life into a dead issue.

Moreover, without a justiciable controversy, the Petitions havebecome pleas for declaratory relief, over which the SupremeCourt has no original jurisdiction. Be it remembered that theywere filed directly with this Court and thus invoked its originaljurisdiction.

On the theory that the “state of rebellion” issue is “capable ofrepetition yet evading review,” I respectfully submit that thequestion may indeed still be resolved even after the lifting ofthe Proclamation and Order, provided the party raising it in aproper case has been and/or continue to be prejudiced ordamaged as a direct result of their issuance.

In the present case, petitioners have not shown that they havebeen or continue to be directly and pecuniarily prejudiced ordamaged by the Proclamation and Order. Neither have theyshown that this Court has original jurisdiction over petitionsfor declaratory relief. I would venture to say that, perhaps, ifthis controversy had emanated from an appealed judgmentfrom a lower tribunal, then this Court may still pass upon theissue on the theory that it is “capable of repetition yet evading

34 G.R. No. 159085, February 3, 2004, 421 SCRA 656.


review,” and the case would not be an original action fordeclaratory relief.

In short, the theory of “capable of repetition yet evadingreview” may be invoked only when this Court has jurisdictionover the subject matter. It cannot be used in the presentcontroversy for declaratory relief, over which the Court has nooriginal jurisdiction.

Given the similar factual milieu in the case at bench, I submitthat judicial review of the instant controversy cannot be justifiedon the principle that the issue is “capable of repetition yetevasive of review.”

II. Substantive

I respectfully submit that the Court should view this case fromthe perspective of executive power, and how it was actuallyexercised in the formulation of the GRP Peace Panel until thechallenged MOA-AD was crafted in its present abandoned form.

The President is the Chief Executive of the Republic andthe Commander-in-Chief of the armed forces of thePhilippines.

Section 1, Article VII of the Philippine Constitution provides:“The executive power shall be vested in the President of thePhilippines.” Additionally, Section 18, Article VII, states:

SEC. 18. The President shall be the Commander-in-Chief of allarmed forces of the Philippines and whenever it becomesnecessary, he may call out such armed forces to prevent orsuppress lawless violence, invasion or rebellion. In case ofinvasion or rebellion, when the public safety requires it, hemay, for a period not exceeding 60 days, suspend the privilegeof the writ of habeas corpus or place the Philippines or anypart thereof under martial law. Within 48 hours from theproclamation of martial law or the suspension of the privilegeof the writ of habeas corpus, the President shall submit a reportin person or in writing to the Congress. The Congress, votingjointly, by a vote of at least a majority of all its Members inregular or special session, may revoke such proclamation orsuspension which revocation shall not be set aside by the


President. Upon the initiative of the President, the Congressmay, in the same manner, extend such proclamation orsuspension for a period to be determined by the Congress, ifthe invasion or rebellion shall persist and public safetyrequires it.

In Sanlakas v. Reyes,35 we held that the above provisiongrants the President, as Commander-in-Chief, a sequence ofgraduated powers, to wit: (1) the calling out power, (2) thepower to suspend the privilege of the writ of habeas corpus,and (3) the power to declare martial law. Thus:

In the exercise of the latter two powers, the Constitutionrequires the concurrence of two conditions, namely, an actualinvasion or rebellion, and that public safety requires theexercise of such power. However, as we observed in IntegratedBar of the Philippines v. Zamora, “[t]hese conditions are notrequired in the exercise of the calling out power. The onlycriterion is that ‘whenever it becomes necessary,’ the Presidentmay call the armed forces ‘to prevent or suppress lawlessviolence, invasion or rebellion.’”

Implicit in these is the President’s power to maintain peaceand order. In fact, in the seminal case of Marcos v. Manglapus,36

we ruled:

[T]his case calls for the exercise of the President’s powers asprotector of the peace. The power of the President to keep thepeace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the Stateagainst external and internal threats to its existence. ThePresident is not only clothed with extraordinary powers intimes of emergency, but is also tasked with extraordinarypowers in times of emergency, but is also tasked with attendingto the day-to-day problems of maintaining peace and orderand ensuring domestic tranquility in times when no foreignfoe appears on the horizon. Wide discretion, within the boundsof law, in fulfilling presidential duties in times of peace is notin any way diminished by the relative want of an emergency

35 Supra note 34.36 G.R. No. 88211, September 15, 1989, 177 SCRA 668.


specified in the commander-in-chief provision. For in makingthe President commander-in-chief the enumeration of powersthat follow cannot be said to exclude the President’s exercisingas Commander-in-Chief powers short of the calling of thearmed forces, or suspending the privilege of the writ of habeascorpus or declaring martial law, in order to keep the peace,and maintain public order and security.

Undoubtedly, then, the President has power to negotiatepeace with the MILF, and to determine in what form and mannerthe peace process should be conducted.

In the exercise of this power, the President issued ExecutiveOrder No. 3, where she mapped out the principles to befollowed in the comprehensive peace process: (a) community-based and defined by all Filipinos as one community, (b) a newsocial compact establishing a genuinely pluralistic society, and(c) a principled and peaceful resolution to the internal armedconflicts.37 In Section 4 thereof, the president identified the 6paths to peace, with processes being interrelated and notmutually exclusive, and must be pursued simultaneously in acoordinated and integrated fashion: (a) pursuit of social,economic and political reforms, (b) consensus-building andempowerment for peace, (c) peaceful, negotiated settlementwith the different rebel groups, (d) programs for thereconciliation, reintegration into mainstream society andrehabilitation, (e) addressing concerns arising from continuingarmed hostilities, and (f) building and nurturing a climateconducive to peace.

Executive Order No. 3, together with the Memorandum ofInstructions of March 1, 2001 and the Memorandum ofInstructions of September 8, 2003, constitutes the mandate ofthe GRP Peace panel. It was within the parameters of thismandate that the GRP Peace panel was to negotiate with theMILF and arrive at a Comprehensive Peace Agreement. It waspursuant to these strictures that the MOA-AD was crafted,initialed and scheduled for signing.

Even as the petitioners and petitioners-in-interventionroundly condemn the MOA-AD, as currently worded, to have37 Section 3, EXECUTIVE ORDER No. 3.


violated constitutional and statutory principles – and assail theGRP Peace Panel for having acted with grave abuse of discretionbecause of its failure to abide by its mandate – it is noteworthythey do not raise any question about the validity of ExecutiveOrder No. 3 and the Instructions issued by the President.

Considering the events that have supervened since thefiling of the initial petition and the issuance by this Court of aTRO, it is suggested that the angle of vision for the discussion ofthe substantive issues in this case should be from theperspective of the relief/s that this Court can grant the parties,taking into account their respective prayers. These are:

1. Mandamus.

a) Three petitions and two petitions-in-intervention prayingfor a writ of mandamus, to compel the production of theofficial copy of the MOA-AD, the petitioners invoking theirright to information. These petitions are now mooted,because the requested documents have already beenproduced.

b) Two respondents-intervenors who pray that the ExecutiveDepartment be directed to sign the MOA-AD and to continuewith the peace negotiations. With the definitepronouncement of the President that the MOA-AD will notbe signed in its present form or in any other form, thisprayer cannot be granted, because the Court cannotcompel a party to enter into an agreement.

2. Declaratory Relief. One petition for declaratory relief whichmay not be granted because the Court has no originaljurisdiction over petitions for declaratory relief.38

3. Certiorari and Prohibition. One petition for certiorari and 12petitions for prohibition, including the petitions-in-intervention, seek a declaration of nullity of the MOA-AD (forbeing unconstitutional), a writ of certiorari against the membersof the GRP Peace Panel for having acted with grave abuse ofdiscretion, and a writ of prohibition to prevent the signing ofthe MOA-AD.

38 Panganiban, Separate Opinion, Sanlakas v. Reyes, supra note 34.


There’s the rub. Because the MOA-AD will not be signed “inits present form, or in any other form,” certiorari will not lie.The Court cannot review an inexistent agreement, an unborncontract that does not purport to create rights or impose dutiesthat are legally demandable. Neither will the remedy ofprohibition lie against a GRP Peace Panel that no longer exists.To do so would be to flog a dead horse.

The ponencia would wish to get around this inescapabletruth by saying: “The MOA-AD not being a document that canbind the Philippines under international law notwithstanding,respondents’ almost consummated act of guaranteeingamendments to the legal framework is, by itself, sufficient toconstitute grave abuse of discretion.”

With due respect, I beg to disagree. Grave abuse ofdiscretion can characterize only consummated acts (oromissions), not an “almost (but not quite) consummated act.”

Chief Justice Panganiban, in his separate opinion inSanlakas, writes: “The first requirement, the existence of a livecase or controversy, means that the existing litigation is ripe forresolution and susceptible of judicial determination, as opposedto one that is conjectural or anticipatory, hypothetical orfeigned.”

It is not the province of this Court to assume facts that donot exist.

It is for the foregoing reasons that I respectfully register mydissent. I vote to DENY the petitions.


SEPARATE OPINION

Reyes, J.:

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

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

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

I. The petitions and petitions-in-intervention have becomemoot due to supervening events. However, they should bedecided given the exceptional circumstances, following wellknown precedents.

During the August 29, 2008 oral arguments before the Court,the Solicitor General manifested that the MOA-AD will not besigned “in its present form or in any other form.”1 The August28, 2008 memorandum of the Executive Secretary also says that“the government will not sign” the MOA-AD.2 Due to thesestatements, the petitions and petitions-in-intervention haveclearly become moot.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 inits present form or in any other form.”

2 Annex “A”; Compliance of the Office of the Solicitor GeneralSeptember 1, 2008.

“The MOA that was originally presented was a step in crafting afinal peace agreement. By design, any MOA as part of a final peaceagreement undergo a thorough review as part of our constitutional

299PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINESPEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION

processes since the MOAs will be part of the enabling law byCongress and a plebiscite to implement the entire agreement. Theaction by the Supreme Court is consistent with that process. Movingforward, we are committed to securing an agreement that is bothconstitutional and equitable because that is the only way thatlong lasting peace can be assured.

“No matter what the Supreme Court ultimately decides thegovernment will not sign the MOA. In light of the recent violentincidents committed by MILF Lawless Goups, the President hasrefocused all peace talks from one that is centered on dialogueswith rebels to one authentic dialogues with the communities, withDDR 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.

Be that as it may, the Court is not precluded from passingjudgment on them. It is hornbook doctrine that courts willdecide cases, otherwise moot, when (1) there is a graveviolation of the Constitution; (2) the exceptional character ofthe situation and the paramount public interest involveddemand; (3) the constitutional issue raised requires formulationof controlling principles to guide the bench, the bar, and thepublic; and (4) the case is capable of repetition yet evadingreview.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 petitionto the Court could be decided. In his petition, Javier arguedthat the proclamation of his rival, Arturo F. Pacificador, was voidbecause it was made only by a division and not by theCommission on Elections en banc as required by the 1973Constitution. The new Solicitor General moved for the dismissal


of the petition on the ground of mootness in view ofsupervening events. The Court refused, saying:

The abolition of the Batasang Pambansa and the disappearanceof the office in dispute between the petitioner and the privaterespondent – 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 resolvednow, once and for all, not only to dispel the legal ambiguitieshere raised. The more important purpose is to manifest in theclearest possible terms that this Court will not disregard andin effect condone wrong on the simplistic and tolerant pretextthat the case has become moot and academic.

The Supreme Court is not only the highest arbiter of legalquestions but also the conscience of the government. Thecitizen comes to us in the quest of law but we must also givehim justice. The two are not always the same. There are timeswe cannot grant the latter because the issue has been settledand decision is no longer possible according to the law. Butthere are also times when although the dispute hasdisappeared, as in this case, it nevertheless cries out to beresolved. Justice demands that we act then, not only for thevindication of the outraged right, though gone, but also for theguidance of and as a restraint on the future.5 (Emphasissupplied)

In Salonga v. Cruz-Paño,6 the Court had already deliberatedon the case, a consensus on the judgment of the Court hadbeen reached, and a draft ponencia was circulating forconcurrences and separate opinions, if any. However, onJanuary 18, 1985, respondent Judge Rodolfo Ortiz granted themotion of respondent City Fiscal Sergio Apostol to drop thesubversion case against petitioner. In accordance with theinstructions of the Minister of Justice, the prosecutionreevaluated its evidence and decided the exclusion of petitioneras one of the accused in the information filed under thequestioned resolution.

5 Javier v. Commission on Elections, Id. at 197–198.6 G.R. No. L-59524, February 18, 1985, 134 SCRA 438.


However, this did not prevent the Court from deciding themerits of the petition. In doing so, the Court reasoned that“[t]he setting aside or declaring void, in proper cases, ofintrusions of State authority into areas reserved by the Bill ofRights for the individual as constitutionally protected sphereswhere even the awesome powers of Government may not enterat will is not the totality of the Court’s function.” It “also has theduty to formulate guiding and controlling constitutionalprinciples, precepts, doctrines, or rules. It has the symbolicfunction of educating bench and bar on the extent of protectiongiven by constitutional guarantees.”7 Similarly, Dela Camara v.Enage,8 Gonzales v. Marcos,9 and Aquino, Jr., v. Enrile10 weredecided under the same aegis.

In David v. Macapagal-Arroyo,11 the Solicitor General movedfor the dismissal of the consolidated petitions on the ground ofmootness. It was argued that because the President had alreadylifted her declaration of state of national emergency, there wasno longer an actual case or controversy. The Court was notconvinced, saying that “[t]he “moot and academic” principle isnot a magical formula that can automatically dissuade the courtsin resolving a case.”12 It then proceeded to declareunconstitutional major parts of the declaration of state ofnational emergency by the President.

Just recently, in Manalo v. Calderon,13 “[n]otwithstandingthe mootness of the issues on restrictive custody andmonitoring of movements of petitioners,” the Court opted toresolve the petition for habeas corpus, due to “(a) theparamount public interest involved, (b) their susceptibility of7 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 and

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.


recurring yet evading review, and (c) the imperative need toeducate the police community on the matter.”

The petitions and petitions-in-intervention call for a similaror analogous treatment by the court, due to theirtranscendental importance and in the national interest.

II. The MOA-AD is unconstitutional.

The GRP Panel went beyond their marching orders from thePresident.

The March 1, 2001 Memorandum of Instructions from thePresident,14 which prescribes the guidelines for the GRP Panelin negotiating with the MILF, partly states:

1. The negotiations shall be conducted in accordance with theMandates of the Philippine Constitution, the Rule of Law,and the principles of the sovereignty and territorial integrityof the Republic of the Philippines.

2. The negotiation process shall be pursued in line with thenational Comprehensive Peace Process, and shall seekthe principled and peace resolution of the armed conflict,with neither blame nor surrender, but with dignity for allconcerned.

3. The objective of the GPNP is to attain a peace settlementthat shall:

14 Paragraph 1 of the Memorandum of Instructions from the Presidentdated March 1, 2001 is reiterated in toto in the Memorandum ofInstructions from the President dated September 8, 2003.Respondent Esperon admitted this when he stated during the oralarguments that “indeed the Memorandum of Instructions wasissued on March 1, 2001 to the Presidential Adviser, to theChairman of the Peace Negotiating Panel thru the PresidentialAdviser on the Peace Process. And since then, it has also beenrevised on September 8, 2003 containing the same paragraph onewhich reads that the negotiation shall be conducted in accordancewith the mandates of the Philippine Constitution, the Rule of Law,and the Principles of Sovereignty and Territorial Integrity of theRepublic of the Philippines.” (TSN, August 15, 2008, pp. 342–343).


a. Contribute to the resolution of the root cause of thearmed conflict, and to societal reform, particularlyin Southern Philippines;

b. Help attain a lasting peace and comprehensivestability in Southern Philippines under a meaningfulprogram of autonomy for Filipino Muslims, consistentwith the Peace Agreement entered into by the GRP andthe MNLF on September 2, 1996; and

c. Contribute to reconciliation and reconstruction inSouthern Philippines.



b. Coordinated Third Party facilitation, where needed;

c. Consultation with affected communities and sectors.(Emphasis supplied)

In an apparent compliance with the Directive of thePresident, the MOA-AD mentions the following documents asterms of reference, to wit:

1. The Agreement for General Cessation of Hostilities datedJuly 18, 1997 Between the GRP and the MILF, and itsImplementing Administrative and Operational Guidelines;

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

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

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

5. The Tripoli Agreement Between the GRP and the MoroNational Liberation Front (MNLF) dated December 23, 1976and the Final Agreement on the Implementation of the


1976 Tripoli Agreement Between the GRP and the MNLFdated September 2, 1996;

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

7. ILO Convention No. 169, in correlation to the UNDeclaration on the Rights of the Indigenous Peoples, andRepublic Act No. 8371 otherwise known as the IndigenousPeoples Rights Act of 1997, the UN Charter, the UNUniversal Declaration on Human Rights, InternationalHumanitarian Law (IHL), and internationally recognizedhuman rights instruments; and

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

Curiously missing in the enumeration, however, is theConstitution. The omission could only mean that the partiesintended the MOA-AD not to be bound by the fundamentallaw. The Constitution is supposed to be the one to conform tothe MOA-AD, and not the other way around.15

There can be no doubt as to the marching orders by thePresident. In negotiating with the MILF, the GRP Panel shoulduse the Constitution as the parameter. Too, the preservation ofthe territorial integrity of the Republic of the Philippines should15 Noteworthy is the statement of Al Haj Murad Ebrahim, the Chairman

of the MILF, thus: “It may be beyond the Constitution but theConstitution can be amended and revised to accommodate theagreement. What is important is during the amendment, it will notderogate or water down the agreement because we have worked thisout for more than 10 years now. <http://222.abs-cbnnews.com/topofthehour.aspx? StoryId=128834> (visited September 25, 2008).(Emphasis supplied)


be maintained at all times. The GRP Panel, however, appears tohave failed to follow those instructions.

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

Under the present constitutional scheme, the President isa mere bystander as far as the process of constitutionalamendment or revision is concerned. The President is deprivedof any participation because the Constitution16 only allows threepolitical agents, namely: (1) the Congress, upon a vote of three-

16 CONSTITUTION (1987), Article XVII, Section 1. Any amendment to, orrevision 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 directlyproposed by the people through initiative upon a petition of atleast twelve per centum of the total number of registered voters, ofwhich every legislative district must be represented by at leastthree per centum of the registered voters therein. No amendmentunder this section shall be authorized within five years followingthe ratification of this Constitution nor oftener than once everyfive years thereafter.

The Congress shall provide for the implementation of the exerciseof 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 itsMembers, submit to the electorate the question of calling such aconvention.

SEC. 4. Any amendment to, or revision of, this Constitution underSection 1 hereof shall be valid when ratified by a majority of thevotes cast in a plebiscite which shall be held not earlier than 60days nor later than 90 days after the approval of such amendmentor revision.


fourths of all its members; (2) a constitutional convention;17

and (3) the people through initiative upon a petition of at leasttwelve (12) per centum of the total number of registered voters,of which every legislative district must be represented by atleast three per centum of its registered voters.

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

The MOA-AD contains numerous provisions that appearunconstitutional.

Respondents claim that the contents of the MOA-AD aremere 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 toswallow. Neither position is acceptable. The GRP Panel has notpresented any proof to buttress its point that, indeed, theparties intended the MOA-AD to be mere concession points forfurther negotiations. The MILF have not also shown proof to

Any amendment under Section 2 hereof shall be valid when ratifiedby a majority of the votes cast in a plebiscite which shall be heldnot earlier than 60 days nor later than 90 days after the certificationby the Commission on Elections of the sufficiency of the petition.

17 CONSTITUTION (1987), Article XVII, Section 3. “The Congress may, by avote of two-thirds of all its Members, call a constitutionalconvention, or by a majority vote of all its Members, submit to theelectorate the question of calling such a convention.”

18 <http://www.tribune.net.ph/headlines/20080806hed2.html>(visited September 27, 2008).


support its claim. In this regard, the MOA-AD should beinterpreted 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, theso-called Bangsamoro Juridical Entity (BJE). This is not permittedby the Constitution, which limits the political subdivisions ofthe Republic of the Philippines into provinces, cities,municipalities, barangays and autonomous regions.19

Worse, the BJE also trenches on the national sovereigntyand territorial integrity of the Republic of the Philippines.20

This is so because pursuant to the MOA-AD: (1) The Bangsamorohomeland and historic territory is clearly demarcated;21 (2) TheBJE is given the authority and jurisdiction over the AncestralDomain and Ancestral lands. This includes both alienable andnon-alienable lands encompassed within their homeland and

19 CONSTITUTION (1987), Article X, Section 1. “The territorial and politicalsubdivisions of the Republic of the Philippines are the provinces,cities, municipalities, and barangays. There shall be autonomousregions in Muslim Mindanao and the Cordilleras as hereinafterprovided.”

20 CONSTITUTION (1987), Article X, Section 15. “There shall be createdautonomous regions in Muslim Mindanao and in the Cordillerasconsisting of provinces, cities, municipalities, and geographicalareas sharing common and distinctive historical and culturalheritage, economic and social structures, and other relevantcharacteristics within the framework of this Constitution and thenational sovereignty as well as territorial integrity of the Republicof the Philippines.”

21 MOA-AD, Territory, paragraph 1. “The Bangsamoro homeland andhistoric 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.”


ancestral territory,22 specified “internal waters”23 as well as“territorial waters”;24 (3) The declared ultimate objective of

22 Id., Concepts and Principles, paragraph 6. “Both Parties agree thatthe Bangsamoro Juridical Entity (BJE) shall have the authority andjurisdiction over the Ancestral Domain and Ancestral lands,including both alienable and non-alienable lands encompassedwithin their homeland and ancestral territory, as well as thedelineation of ancestral domain/lands of the Bangsamoro peoplelocated therein.”

23 Id., Territory, paragraph 2(f). “The BJE shall have jurisdiction overthe management, conservation, development, protection,utilization and disposition of all natural resources, living andnon-living, within its internal waters extending 15 kilometers fromthe coastline of the BJE area.”

24 Id., Territory, paragraph 2(g). “(1) The territorial waters of the BJEshall stretch beyond the BJE internal waters up to the Republic ofthe Philippines (RP) baselines south east and south west ofmainland Mindanao. Beyond the 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 suchmanagement of the Territorial Waters shall be provided in anagreement to be entered into by the Parties.

“(2) The boundaries of the territorial waters shall stretch beyondthe 15-km. BJE internal waters up to the Central Government’sbaselines under existing laws. In the southern and eastern part ofthe BJE, it shall be demarcated by a line drawn from the MagulingPoint, Palimbang, Province of Sultan Kudarat up to the straightbaselines of the Philippines. On the northwestern part, it shall bedemarcated by a line drawn from Little Sta. Cruz Island, ZamboangaCity, up to Naris Point, Bataraza, Palawan. On the western part ofPalawan, it shall be demarcated by a line drawn from the boundaryof Bataraza and Rizal up to the straight baselines of the Philippines.

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


entrenching the Bangsamoro homeland as a territorial space is“to secure their identity and posterity, to protect their propertyrights and resources as well as to establish a system ofgovernance suitable and acceptable to them as a distinctdominant people. The Parties respect the freedom of choice ofthe indigenous peoples;”25 and (4) The BJE is empowered “tobuild, develop and maintain its own institutions, inclusive of,civil service, electoral, financial and banking, education,legislation, legal, economic, and police and internal securityforce, judicial system and correctional institutions, necessaryfor developing a progressive Bangsamoro society, x x x.”26

Otherwise stated, respondents agreed to create a BJE out ofthe national territory of the Republic, with a distinct andseparate system of government from the Republic of thePhilippines.27

Notably, the United Nations Declaration on the Rights ofIndigenous Peoples, while recognizing the rights of indigenouspeoples to self-determination, does not give them the right toundermine the territorial integrity of a State.28

25 Id., Governance, paragraph 2.26 Id., paragraph 8.27 Id., Concepts and Principles, paragraph 4. “Both Parties

acknowledge that the right to self-governance of the Bangsamoropeople is rooted on ancestral territoriality exercised originallyunder the suzerain authority of their sultanates and the Pat aPangampong ku Ranaw. The Moro sultanates were states orkarajaan/kadatuan resembling a body politic endowed with allthe elements of nation-state in the modern sense. As a domesticcommunity 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 havingentered into treaties of amity and commerce with foreign nations.The Parties concede that the ultimate objective of entrenching theBangsamoro homeland as a territorial space is to secure theiridentity and posterity, to protect their property rights and resourcesas well as to establish a system of governance suitable andacceptable 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


Second. The creation of the BJE is prohibited even assumingthat the MOA-AD only attempts to create the BJE as anautonomous region. Only Congress is empowered to create anautonomous region.29

In fact, RA Nos. 673430 and 9054,31 the laws creating andexpanding 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

implying for any State, people, group or person any right to engagein any activity to perform any act contrary to the Charter of theUnited Nations or construed as authorizing or encouraging anyaction which would dismember or impair, totally or in part, theterritorial integrity or political unity of sovereign and independentStates. (Emphasis supplied)

29 CONSTITUTION (1987), Article X, Section 18. “The Congress shall enactan organic act for each autonomous region with the assistanceand participation of the regional consultative commissioncomposed of representatives appointed by the President from alist of nominees from multi-sectoral bodies. The organic act shalldefine the basic structure of government for the region consistingof the executive department and legislative assembly, both of whichshall be elective and representative of the constituent politicalunits. The organic acts shall likewise provide for special courtswith personal, family, and property law jurisdiction consistentwith the provisions of this Constitution and national laws.

“The creation of the autonomous region shall be effective whenapproved by majority of the votes cast by the constituent units in aplebiscite called for the purpose, provided that only provinces,cities, and geographic areas voting favorably in such plebisciteshall be included in the autonomous region.”

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

31 Passed on March 31, 2001. “An Act to Strengthen and Expand theOrganic Act for the Autonomous Region in Muslim Mindanao,Amending for the Purpose Republic Act No. 7634, Entitled “An ActProviding for the Autonomous Region in Muslim Mindanao, AsAmended.”


to comprise the ARMM territory under the control of theRegional 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 ofgovernment within the MOA-AD itself. It also obligates the GRPPanel to “conduct and deliver” a plebiscite “within 12 monthsfollowing the signing of the MOA-AD.”32

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

32 MOA, Territory, paragraph 2(d). “Without derogating from therequirements of prior agreements, the Government stipulates toconduct and deliver, using all possible legal measures, within 12months following the signing of the MOA-AD, a plebiscite coveringthe areas as enumerated in the list and depicted in the map asCategory A attached herein (the “Annex”). The Annex constitutes anintegral part of this framework agreement. Toward this end, theParties shall endeavour to complete the negotiations and resolveall outstanding issues on the Comprehensive Compact within 15months from the signing of the MOA-AD.”

33 “The State recognizes and promotes the rights of indigenous culturalcommunities within the framework of national unity anddevelopment.”

34 MOA-AD, Concepts and Principles, paragraph 2. “It is essential tolay the foundation of the Bangsamoro homeland in order to addressthe Bangsamoro people’s humanitarian and economic needs aswell as their political aspirations. Such territorial jurisdictionsand geographic areas being the natural wealth and patrimonyrepresent the social, cultural and political identity and pride of allthe Bangsamoro people. Ownership of the homeland is vestedexclusively in them by virtue of their prior rights of occupationthat had inhered in them as sizeable bodies of people, delimited by


Indeed, Chapter VIII of the IPRA provides for stringentrequirements and strict process of delineation for recognitionof ancestral domains, thus:

SEC. 51. Delineation and Recognition of Ancestral Domains.Self delineation shall be the guiding principle in theidentification and delineation of ancestral domains. As such,the ICCs/IPs concerned shall have a decisive role in all theactivities pertinent thereto. The Sworn Statement of the Eldersas to the scope of the territories and agreements/pacts madewith neighboring ICCs/IPs, if any, will be essential to thedetermination of these traditional territories. The Governmentshall take the necessary steps to identify lands which the ICCs/IPs concerned traditionally occupy and guarantee effectiveprotection of their rights of ownership and possession thereto.Measures shall be taken in appropriate cases to safeguardthe right of the ICCs/IPs concerned to land which they may nolonger be exclusively occupied by them, but to which theyhave traditionally had access for their subsistence andtraditional activities, particularly of ICCs/IPs who are stillnomadic and/or shifting cultivators.

SEC. 52. Delineation Process. – The identification and delineationof ancestral domains shall be done in accordance with thefollowing procedures:their ancestors since time immemorial, and being the firstpolitically organized dominant occupants.”

Id., paragraph 3. “Both Parties acknowledge that ancestral domaindoes not form part of the public domain but encompasses ancestral,communal, and customary lands, maritime, fluvial and alluvialdomains as well as all natural resources therein that have inuredor vested ancestral rights on the basis of native title. Ancestraldomain and ancestral land refer to those held under claim ofownership, occupied or possessed, by themselves or through theancestors of the Bangsamoro people, communally or individuallysince time immemorial continuously to the present, except whenprevented by war, civil disturbance, force majeure, or other formsof possible usurpation or displacement by force, deceit, stealth, oras a consequence of government project or any other voluntarydealings entered into by the government and private individuals,corporate entities or institutions.”


x x x x

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

(c) Delineation Proper. – The official delineation of ancestraldomain boundaries including census of all communitymembers therein, shall be immediately undertaken by theAncestral Domains Office upon filing of the applicationby the ICCs/IPs concerned. Delineation will be done incoordination with the community concerned and shall atall times include genuine involvement and participationby the members of the communities concerned.

(d) Proof Required. – Proof of Ancestral Domain Claims shallinclude the testimony of elders or community under oath,and other documents directly or indirectly attesting tothe possession or occupation of the area since timeimmemorial by such ICCs/IPs in the concept of ownerswhich shall be any one of the following authenticdocuments:

1) Written accounts of the ICCs/IPs customs andtraditions;

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

3) Pictures showing long term occupation such as thoseof old improvements, burial grounds, sacred placesand old villages;

4) Historical accounts, including pacts and agreementsconcerning boundaries entered into by the ICCs/IPsconcerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;


8) Pictures and descriptive histories of traditionalcommunal forests and hunting grounds;

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

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

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

(f) Report of Investigation and Other Documents. – A completecopy of the preliminary census and a report ofinvestigation, shall be prepared by the Ancestral DomainsOffice 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 thereinfor at least 15 days. A copy of the document shall also beposted at the local, provincial and regional offices of theNCIP, and shall be published in a newspaper of generalcirculation once a week for two consecutive weeks toallow other claimants to file opposition thereto within15 days from date of such publication: Provided, That inareas where no such newspaper exist, broadcasting in aradio station will be a valid substitute; Provided, further,That mere posting shall be deemed sufficient if bothnewspaper and radio station are not available.

(h) Endorsement to NCIP. – Within 15 days from publication,and of the inspection process, the Ancestral DomainsOffice shall prepare a report to the NCIP endorsing afavorable action upon a claim that is deemed to havesufficient proof. However, if the proof is deemedinsufficient, the Ancestral Domains Office shall requirethe submission of additional evidence; Provided, That theAncestral Domains Office shall reject any claim that is


deemed patently false or fraudulent after inspection andverification: Provided, further, That in case of rejection,the Ancestral Domains Office shall give the applicant duenotice, copy furnished all concerned, containing thegrounds for denial. The denial shall be appealable to theNCIP. Provided, furthermore, That in cases where there areconflicting claims among ICCs/IPs on the boundaries ofancestral domain claims, the Ancestral Domains Officeshall cause the contending parties to meet and assist themin coming up with a preliminary resolution of the conflict,without prejudice to its full adjudication according to theSection below.

The MOA-AD is problematic when read in conjunction withthe IPRA because it does not present any proof or specificreference that all the territories it enumerates accuratelyrepresent the “ancestral domains” of the BangsamoroHomeland. The MOA-AD assumes that these territories areincluded in the Bangsamoro Homeland as ancestral domains,without proof or identification of native title or other claim ofownership to all the affected areas.

Section 3(g) of the IPRA35 also requires that there be a “freeand informed prior consent” by the indigenous peoplesconcerned to be exercised through consultations before anydecision relating to their ancestral domain is made. This rulenot only guarantees the right to information36 of the people in35 IPRA, Section 3(g). “Free and Prior Informed Consent – as used in

this Act shall mean the consensus of all members of the ICCs/IPsto; be determined in accordance with their respective customarylaws and practices, free from any external manipulation,interference and coercion, and obtained after fully disclosing theintent and scope of the activity, in a language an processunderstandable to the community.”

36 CONSTITUTION (1987), Article 3, Section 7. “The right of the people toinformation on matters of public concern shall be recognized.Access to official records, and to documents and papers pertainingto official acts, transactions, or decisions, as well as to governmentresearch data used as basis for policy development, shall beafforded the citizen, subject to such limitations as may be providedby law.”


these areas, but also the right of the indigenous peoples to“free and informed prior consent” as an element of dueprocess.37 Obviously, respondents did not conduct the requiredconsultation before negotiating the terms of the MOA-AD.Otherwise, no petitions and petitions-in-intervention wouldhave been filed in the first place.

Fourth. Under the MOA-AD, the BJE is vested withjurisdiction, powers and authority over land use, development,utilization, disposition and exploitation of natural resourceswithin the Bangsamoro Homeland.38 In doing so, respondentsin effect surrendered to the BJE ownership and gave it full37 CONSTITUTION (1987), Article 3, Section 1. “No person shall be deprived

of life, liberty, or property without due process of law, nor shallany person be denied the equal protection of the laws.”

38 MOA-AD, Resources, paragraph (1). “The BJE is empowered withauthority and responsibility for the land use, development,conservation and disposition of the natural resources within thehomeland. Upon entrenchment of the BJE, the land tenure and useof such resources and wealth must reinforce their economic self-sufficiency. Among the purposes or measures to make progressmore rapid are:

a. Entry into joint development, utilization, and exploitation ofnatural 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, inparticular the need to address unemployment and improvementof living conditions for the population in the BJE;

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

d. Undertaking program review of public services, industrial ortrade-related and agrarian-related issues in situations ofdifferent sectors of the society in the BJE, which acquirecommunal character deriving from the special nature of theirindustry.


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 nowexpressed 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 othernatural resources are owned by the State. With the exception

Id., paragraph 2. “The Bangsamoro People through their appropriatejuridical entity shall, among others, exercise power or authorityover the natural resources within its territorial jurisdiction:

a. To explore, exploit, use or utilize and develop their ancestraldomain and ancestral lands within their territorialjurisdiction, inclusive of their right of occupation, possession,conservation, and exploitation of all natural resources foundtherein;

b. To conserve and protect the human and natural environmentfor their sustainable and beneficial enjoyment and theirposterity;

c. To utilize, develop, and exploit its natural resources found intheir ancestral domain or enter into a joint development,utilization, and exploitation of natural resources, specificallyon strategic minerals, designed as commons or sharedresources, which is tied up to the final setting of appropriateinstitution;

d. To revoke or grant forest concessions, timber license, contractsor agreements in the utilization and exploitation of naturalresources designated as commons or shared resources,mechanisms for economic cooperation with respect tostrategic minerals, falling within the territorial jurisdictionof the BJE;

e. To enact agrarian laws and programs suitable to the specialcircumstances of the Bangsamoro people prevailing in theirancestral lands within the established territorial boundariesof the Bangsamoro homeland and ancestral territory withinthe competence of the BJE; and


of agricultural lands, all other natural resources shall not bealienated. The exploration, development, and utilization ofnatural resources shall be under the full control andsupervision of the State. The State may directly undertake suchactivities, or it may enter into co-production, joint venture, orproduction-sharing agreements with Filipino citizens, orcorporations or associations at least 60 per centum of whosecapital is owned by such citizens. Such agreements may be fora period not exceeding 25 years, renewable for not more than25 years, and under such terms and conditions as may beprovided by law. In cases of water rights for irrigation, watersupply fisheries, or industrial uses other than the developmentof water power, beneficial use may be the measure and limit ofthe grant.

The State shall protect the nation’s marine wealth in itsarchipelagic waters, territorial sea, and exclusive economiczone, and reserve its use and enjoyment exclusively to Filipinocitizens.

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

The President may enter into agreements with foreign-ownedcorporations involving either technical or financial assistancefor large-scale exploration, development, and utilization ofminerals, petroleum, and other mineral oils according to the

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

Id., paragraph 5. “Jurisdiction and control over, and the right ofexploring for, exploiting, producing and obtaining all potentialsources of energy, petroleum, in situ, fossil fuel, mineral oil andnatural gas, whether onshore or offshore, is vested in the BJE asthe party having control within its territorial jurisdiction, providedthat in times of national emergency, when public interest sorequires, the Central Government may, during the emergency, for afixed period and under reasonable terms as may be agreed by bothParties, temporarily assume or direct the operations of suchstrategic resources.”


general terms and conditions provided by law, based on realcontributions to the economic growth and general welfare ofthe country. In such agreements, the State shall promote thedevelopment and use of local scientific and technicalresources.

The President shall notify the Congress of every contract enteredinto in accordance with this provision, within 30 days fromits execution.

Fifth. The MOA-AD also grants to the BJE powers to enterinto any economic cooperation and trade relations with foreigncountries. It compels the Republic of the Philippines to ensurethe BJE’s participation in international meetings and events,participation in Philippine official missions and delegationsengaged in the negotiation of, among others, borderagreements, sharing of incomes and revenues.39 Thus, by39 MOA-AD, Resources, paragraph 4. “The BJE is free to enter into any

economic cooperation and trade relations with foreign countries:provided, however, that such relationships and understandingsdo not include aggression against the Government of the Republicof the Philippines; provided, further that it shall remain the dutyand obligation of the Central Government to take charge of externaldefense. Without prejudice to the right of the Bangsamoro juridicalentity to enter into agreement and environmental cooperation withany friendly country affecting its jurisdiction, it shall include:

a. The option to establish and open Bangsamoro trade missionsin foreign countries with which it has economic cooperationagreements; and

b. The elements bearing in mind the mutual benefits derived fromPhilippine archipelagic status and security.

And, in furtherance thereto, the Central Government shall takenecessary steps to ensure the BJE’s participation in internationalmeetings and events, e.g., ASEAN meetings and other specializedagencies of the United Nations. This shall entitle the BJE’sparticipation in Philippine official missions and delegations thatare engaged in the negotiation of border agreements or protocolsfor environmental protection, equitable sharing of incomes andrevenues, in the areas of sea, seabed and inland seas or bodies ofwater adjacent to or between islands forming part of the ancestraldomain, in addition to those of fishing rights.


assenting to install an intra sovereign political subdivisionindependent of the single sovereign state that is the Republicof the Philippines, respondents violated not only theConstitution, Article V, Section 2 of RA No. 6734,40 but also theunitary system of government of the Republic of the Philippines.

40 Republic Act No. 6734, Article V, Section 2. The Autonomous Regionis a corporate entity with jurisdiction in all matters devolved to itby the Constitution and this Organic Act as herein enumerated:




(4) Personal, family and property relations;

(5) Regional, urban and rural planning development;



(8) Preservation and development of the cultural heritage;

(9) Powers, functions and responsibilities now being exercisedby 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;


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 allother territories over which the Philippines has sovereigntyor jurisdiction, consisting of its terrestrial, fluvial and aerialdomains, including its territorial sea, the seabed, the subsoil,the insular shelves, and other submarine areas. The watersaround, between, and connecting the islands of thearchipelago, regardless of their breadth and dimensions, formpart 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 geographicaldalmatian. It creates a Bangsamoro Homeland with a specifiedland mass, maritime, terrestrial, fluvial and alluvial dominions,(with definite internal41 and territorial42 waters), aerial domain,

(l) Maritime, land and air transportation andcommunications that affect areas outside the AutonomousRegion; and

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

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

41 MOA-AD, Territory, paragraph 2(f). “The BJE shall have jurisdictionover the management, conservation, development, protection,utilization and disposition of all natural resources, living andnon-living, within its internal waters extending 15 kilometers fromthe coastline of the BJE area.”

42 Id., paragraph 2(g).

“(1) The territorial waters of the BJE shall stretch beyond theBJE internal waters up to the Republic of the Philippines (RP)baselines south east and south west of mainland Mindanao.Beyond the 15 kilometers internal waters, the CentralGovernment and the BJE shall exercise joint jurisdiction,authority and management over areas and all naturalresources, living and non-living contained therein. The detailsof such management of the Territorial Waters shall be providedin an agreement to be entered into by the Parties.”


atmospheric space,43 and even distinct “territorial waters”within the RP baselines.44

“(2) The boundaries of the territorial waters shall stretch beyondthe 15-km. BJE internal waters up to the Central Government’sbaselines under existing laws. In the southern and easternpart of the BJE, it shall be demarcated by a line drawn from theMaguling Point, Palimbang, Province of Sultan Kudarat up tothe straight baselines of the Philippines. On the northwesternpart, 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 bedemarcated by a line drawn from the boundary of Batarazaand Rizal up to the straight baselines of the Philippines.


43 Id., paragraph 1. “1. The Bangsamoro homeland and historicterritory refer to the land mass as well as the maritime, terrestrial,fluvial and alluvial domains, and the aerial domain, theatmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. x x x.”

44 Id., paragraph 2(g). “(1) The territorial waters of the BJE shall stretchbeyond the BJE internal waters up to the Republic of the Philippines(RP) baselines south east and south west of mainland Mindanao.Beyond the 15 kilometers internal waters, the Central Governmentand the BJE shall exercise joint jurisdiction, authority andmanagement over areas and all natural resources, living and non-living contained therein. The details of such management of theTerritorial Waters shall be provided in an agreement to be enteredinto by the Parties.

“(2) The boundaries of the territorial waters shall stretch beyondthe 15-km. BJE internal waters up to the Central Government’sbaselines under existing laws. In the southern and eastern part ofthe BJE, it shall be demarcated by a line drawn from the MagulingPoint, Palimbang, Province of Sultan Kudarat up to the straightbaselines of the Philippines. On the northwestern part, it shall bedemarcated by a line drawn from Little Sta. Cruz Island, Zamboanga


City, up to Naris Point, Bataraza, Palawan. On the western part ofPalawan, it shall be demarcated by a line drawn from the boundaryof Bataraza and Rizal up to the straight baselines of the Philippines.


45 MOA-AD, Resources, paragraph 8. “All proclamations, issuances,policies, rules and guidelines declaring old growth or naturalforests and all watersheds within the BJE as forest reserves shallcontinue to remain in force until otherwise modified, revised orsuperseded by subsequent policies, rules and regulations issuedby the competent authority under the BJE.

Id., paragraph 9. “Forest concessions, timber licenses, contractsor agreements, mining concessions, Mineral Production andSharing Agreements (MPSA), Industrial Forest ManagementAgreements (IFMA), and other land tenure instruments of any kindor nature whatsoever granted by the Philippine Governmentincluding those issued by the present ARMM shall continue tooperate from the date of formal entrenchment of the BJE unlessotherwise expired, reviewed, modified and/or cancelled by thelatter.”

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

Seventh. The MOA-AD grants to the BJE plenary power toundo executive acts and delegate to the BJE the authority torevoke existing proclamations, issuances, policies, rules andguidelines, forest concessions, timber licenses, contracts oragreements in the utilization of natural resources, miningconcessions, land tenure instruments.45 This constitutes anundue delegation of executive power. The President maydelegate its executive power only to local government units oran administrative body attached to the executive department.46

The delegation of power to the BJE, on the other hand, isdelegation of executive power to an entirely different juridicalentity that is not under its supervision or control. That isimpermissible.

Eighth. The MOA-AD empowers the BJE to build, develop,and maintain its own institutions. This includes civil service,


47 MOA, Governance, paragraph 8. “The Parties agree that the BJEshall be empowered to build, develop and maintain its owninstitutions, inclusive of, civil service, electoral, financial andbanking, education, legislation, legal, economic, and police andinternal security force, judicial system and correctional institutions,necessary for developing a progressive Bangsamoro society, thedetails of which shall be discussed in the negotiation of theComprehensive Compact.”

48 CONSTITUTION (1987), Article IX(C), Section 2(1). “The Commission onElections shall exercise the following powers and functions:

1. Enforce and administer all laws and regulations relative tothe conduct of an election, plebiscite, initiative, referendum,and recall.”

49 CONSTITUTION (1987), Article XVI, Section 6. “The State shall establishand maintain one police force, which shall be national in scopeand civilian in character, to be administered and controlled by anational police commission. The authority of local executives overthe police units in their jurisdiction shall be provided by law.”

50 CONSTITUTION (1987), Article XVI, Section 4. “The Armed Forces of thePhilippines shall be composed of a citizen armed force which shallundergo military training and serve as may be provided by law. Itshall keep a regular force necessary for the security of the State.”

51 CONSTITUTION (1987), Article VIII, Section 1. “The judicial power shallbe vested in one Supreme Court and in such lower courts as may beestablished by law.

Judicial power includes the duty of the courts of justice to settleactual controversies involving rights which are legally demandable

electoral, financial and banking institutions, education,legislation, legal, economic, police, internal security force, andjudicial system.47 This is anathema to several provisions of theConstitution, namely: (1) the authority of the Commission onElections to administer all election laws in the Philippines;48

(2) that there shall only be one police force, national in scopeto be administered and controlled by the National PoliceCommission;49 (3) that the defense of the Republic shall belongexclusively to the Armed Forces of the Philippines;50 (4) thatjudicial power shall be vested in one Supreme Court and insuch 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 thereshall be one independent economic planning agency.53

All told, respondents appear to have committed graveabuse of discretion in negotiating and initialing the MOA-AD.Grave abuse of discretion has been traditionally understood asimplying such capricious and whimsical exercise of judgmentas is equivalent to lack of jurisdiction, or, in other words wherethe power is exercised in an arbitrary or despotic manner.54 The

and enforceable, and to determine whether or not there has been agrave abuse of discretion amounting to lack or excess ofjurisdiction on the part of any branch or instrumentality of theGovernment.”

52 CONSTITUTION (1987), Article XII, Section 20. “The Congress shallestablish an independent central monetary authority, the membersof whose governing board must be natural-born Filipino citizens,of known probity, integrity, and patriotism, the majority of whomshall come from the private sector. They shall also be subject tosuch other qualifications and disabilities as may be prescribed bylaw. The authority shall provide policy direction in the areas ofmoney, banking, and credit. It shall have supervision over theoperations of banks and exercise such regulatory powers as maybe provided by law over the operations of finance companies andother institutions performing similar functions.

“Until the Congress otherwise provides, the Central Bank of thePhilippines operating under existing laws, shall function as thecentral monetary authority.”

53 CONSTITUTION (1987), Article XII, Section 9. “The Congress may establishan independent economic and planning agency headed by thePresident, which shall, after consultations with the appropriatepublic agencies, various private sectors, and local governmentunits, recommend to Congress, and implement continuingintegrated and coordinated programs and policies for nationaldevelopment. Until the Congress provides otherwise, the NationalEconomic and Development Authority shall function as theindependent 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, 38Off. Gaz. 830; Tavera Luna, Inc. v. Nable, 38 Off. Gaz. 62; San SebastianCollege v. Court of Appeals, G.R. No. 84401, May 15, 1991, 197 SCRA138; 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.

definition has been expanded because now, grave abuse ofdiscretion exists when there is a contravention of theConstitution, the law and jurisprudence.55

NEGOTIATE WITHIN THE CONSTITUTIONAL BOUNDS

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

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

WHER[E]FORE, I vote to GRANT the petitions and petitions-in-intervention and to strike down the MOA-AD asUNCONSTITUTIONAL.

327PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANELON ANCESTRAL DOMAIN (GRP) I J LEONARDO-DE CASTRO, CONCURRING AND DISSENTING OPINION

SEPARATE CONCURRING AND DISSENTING OPINION

Leonardo-De Castro, J.:

I vote to consider the cases moot and academic considering themanifestation in the Memorandum, dated September 24, 2008,filed by the Office of the Solicitor General (OSG) that:

“x x x The Executive Department has repeatedly andcategorically stated that the MOA-AD will not be signed in itspresent form or in any other form. The Chief Executive has infact gone to the extent of dissolving the Government of theRepublic of the Philippines (GRP) Panel and has decided totake on a different tack and launch talks, no longer with rebelsor rebel groups, but with more peace-loving community-basedgroups. x x x”1

This development renders unnecessary a detailed analysisof each of the stipulations contained in the said MOA-AD, whichhave grave constitutional implications on the sovereignty,territorial integrity and constitutional processes of the Republicof the Philippines, all of which are non-negotiable whenviewed in the context of the nature of the internal conflict itseeks to address and the state of our nation today.

I believe this is a prudent move on the part of the ExecutiveDepartment. By the very essence of our republican anddemocratic form of government, the outcome of ourconstitutional processes, particularly the legislative process andthe constituent process of amending the constitution, cannotbe predetermined or predicted with certainty as it is made toappear by the consensus points of the MOA-AD. Consequently,it is beyond the authority of any negotiating panel to committhe implementation of any consensus point or a legal frameworkwhich is inconsistent with the present Constitution or existingstatutes.

Moreover, our constitutional processes are well-definedby various provisions of the Constitution. The establishment ofa political and territorial “space” under a so-called BangsamoroJuridical Entity (BJE) is nowhere to be found in the 19871 OSG Memorandum (September 24, 2008), pp. 7–8.


2 CONSTITUTION (1987), Article X, Section 2.3 CONSTITUTION (1987), Article X, Section 18.

Constitution, which provides for the country’s territorial andpolitical subdivisions as follows:

The territorial and political subdivisions of the Republic ofthe Philippines are the provinces, cities, municipalities, andbarangays. There shall be autonomous regions in MuslimMindanao and the Cordilleras as hereinafter provided.2

In the case of the autonomous regions, their creation is theshared responsibility of the political branches of the governmentand the constituent units affected. The Constitution is explicitin this regard, to wit:

The Congress shall enact an organic act for each autonomousregion with the assistance and participation of the regionalconsultative commission composed of representativesappointed by the President from a list of nominees frommultisectoral bodies. The organic act shall define the basicstructure of government for the region consisting of theexecutive department and legislative assembly, both of whichshall be elective and representative of the constituent politicalunits. The organic acts shall likewise provide for special courtswith personal, family, and property law jurisdiction consistentwith the provisions of this constitution and national law.

The creation of the autonomous region shall be effective whenapproved by majority of the votes cast by the constituent unitsin a plebiscite called for the purpose, provided that onlyprovinces, cities, and geographic areas voting favorably insuch plebiscite shall be included in the autonomous region.3

(Emphasis supplied)

If the establishment of autonomy requires the jointparticipation of Congress, the President, and of the people inthe area affected, from the inception of the process of creationof an autonomous region, with more reason, the creation ofthe BJE – an entity intended to have its own basic law to beadopted in accordance with an “associative arrangement” –which would imply, in legal terms, semi-independence if notoutright independence – cannot be negotiated without the

329PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANELON ANCESTRAL DOMAIN (GRP) I J LEONARDO-DE CASTRO, CONCURRING AND DISSENTING OPINION

participation of Congress and consultations with the people,residing not only in the area to be placed under the BJE but alsoin the rest of our country. Even with the participation of Congressand the consultation with stakeholders, the process at the onsetmust conform and explicitly be subject to our Constitution. Thisis specially important as the unsigned MOA-AD stipulates adefinite framework that threatens to erase, through the“policies, rules and regulations” and basic law of the BJE, theobjective existence of over 400 years of development andprogress of our people by unsettling private voluntaryagreements and undoing the official acts of our governmentinstitutions performed pursuant to the Constitution and thelaws in force during the said long period in our history, withinthe identified areas, to be carved out of a substantial portion ofthe national territory, and with only the “details,” the“mechanisms and modalities for actual implementation” to benegotiated and embodied in a Comprehensive Compact. To mymind, this alarming possibility contemplated in the MOA-ADmay be the cause of chaos and even greater strife for ourbrothers in the south, rather than bring about the intendedpeace.


CONCURRING AND DISSENTING OPINION

Brion, J.:

The Petitions for Mandamus

I concur with the ponencia’s conclusion that the mandamusaspect of the present petitions has been rendered moot whenthe respondents provided this Court and the petitioners withthe official copy of the final draft of the Memorandum ofAgreement on Ancestral Domain (MOA-AD).1

The Petitions for Prohibition

I likewise concur with the implied conclusion that the “non-signing of the MOA-AD and the eventual dissolution of theGovernment of the Republic of the Philippines (GRP) panelmooted the prohibition aspect of the petitions,” but disagreethat the exception to the “moot and academic” principle shouldapply. The ponencia alternatively claims that the petitions havenot been mooted. I likewise dissent from this conclusion.

a. The Ponencia and the Moot and Academic Principle.

As basis for its conclusion, the ponencia cites David v.Macapagal-Arroyo2 for its holding that “‘the moot andacademic’ principle not being a magical formula thatautomatically dissuades courts in resolving a case, it [the Court]will decide cases, otherwise moot and academic, if it feels that(a) there is a grave violation of the Constitution;3 (b) the situationis of exceptional character and paramount public interest isinvolved;4 (c) the constitutional issue raised requiresformulation of controlling principles to guide the bench, the

1 Respondents’ Compliance dated August 7, 2008.2 G.R. 171396, May 3, 2006, 489 SCRA 161.3 Citing Batangas v. Romulo, 429 SCRA 736 (2004).4 Citing Lacson v. Perez, 357 SCRA 756 (2001).

331PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACEPANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION

bar and the public;5 and (d) the case is capable of repetition yetevading review.”6

In further support of its position on the mootness issue,the ponencia additionally cites the American ruling that “once asuit is filed and the doer voluntarily ceases the challengedconduct, it does not automatically deprive the tribunal of powerto hear and determine the case and does not render the casemoot especially when the plaintiff seeks damages or prays forinjunctive relief against the possible recurrence of theviolation.”7

b. The Context of the “Moot and Academic” Principle.

The cited David v. Macapagal-Arroyo defines a “moot andacademic” case to be “one that ceases to present a justiciablecontroversy by virtue of supervening events, so that a declarationthereon would be of no practical use or value.” It goes on tostate that “generally, courts decline jurisdiction over such casesand dismiss it on the ground of mootness.”8 This pronouncementtraces its current roots from the express constitutional ruleunder the second paragraph of Section 1, Article VIII of the 1987Constitution that “[j]udicial power includes the duty of thecourts of justice to settle actual controversies involving rightswhich are legally demandable and enforceable x x x.” This rule,which can conveniently be called the traditional concept ofjudicial power, has been expanded under the 1987 Constitutionto include the power “to determine whether or not there hasbeen grave abuse of discretion amounting to lack or excess ofjurisdiction on the part of any branch or instrumentality of theGovernment.”

Whether under the traditional or the expanded concept,judicial power must be based on an actual justiciable controversyat whose core is the existence of a case involving rights which5 Citing Province of Batangas, supra note 3.6 Citing Albana v. Comelec, 435 SCRA 98 (2004); Acop v. Guingona,

383 SCRA 577 (2002); Sanlakas v. Executive Secretary, 421 SCRA 656(2004).

7 Ponencia, p. 32.8 Supra note 2, at p. 214


are legally demandable and enforceable. Without this feature,courts have no jurisdiction to act. Even a petition for declaratoryrelief9 – a petition outside the original jurisdiction of this Courtto entertain – must involve an actual controversy that is ripe foradjudication.10 In light of these requirements, any exceptionthat this Court has recognized to the rule on mootness (asexpressed, for example, in the cited David v. Macapagal-Arroyo)is justified only by the implied recognition that a continuingcontroversy exists.

Specifically involved in the exercise of judicial power inthe present petitions is the Court’s power of judicial review,i.e., the power to declare the substance, application oroperation of a treaty, international agreement, law, presidentialdecree, proclamation, order, instruction, ordinance, orregulation unconstitutional.11 A first requisite for judicial reviewis that there be an “actual case” calling for the exercise of judicialpower. Fr. Joaquin Bernas, S.J., an eminent constitutional lawexpert, comments in this regard that –

This is a manifestation of the commitment to the adversarialsystem. Hence, the Court has no authority to pass upon issuesof constitutionality through advisory opinions and it has noauthority to resolve hypothetical or feigned constitutionalproblems or friendly suits collusively arranged betweenparties without real adverse interests. Nor will the Courtnormally entertain a petition touching on an issue that hasbecome moot because then there would no longer be a ‘fleshand blood’ case for the Court to resolve.” [Citations deleted,emphasis supplied.]12

9 The cause of action in the present petition filed by the City of Iliganin G.R. No. 183893.

10 See: Delumen v. Republic, 94 Phil. 287 (1954); Allied BroadcastingCenter, Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA782; Mangahas v. Hon. Judge Paredes, G.R. No. 157866, February14, 2007, 515 SCRA 709.

11 CONSTITUTION, Article VIII, Section 4(2).12 The 1987 Constitution of the Republic of the Philippines, A

Commentary (2003 ed.), p. 938.


Other than the rule on actual case and standing (whichaspect this separate opinion does not cover), jurisprudenceholds that this Court will not touch upon the issue ofconstitutionality unless it is unavoidable or is the very lis mota.13

As will be discussed in refuting the ponencia’s various positions,this rule finds special application in the present case in light ofthe political sensitivity of the peace talks with the MILF and theissues it has placed on the agenda, namely, peace and order inMindanao and the MILF’s aspirations for freedom.

My disagreement with the ponencia on the application ofthe exceptions to the mootness principle of David v. Macapagal-Arroyo is essentially based on how the mootness principle andits exceptions should be applied. While the mootness principleis “not a magical formula that automatically dissuades courts inresolving cases,” so also should the exceptions not beconsidered magical formulas that should apply when the Courtis minded to conduct a review despite the mootness of apetition. In other words, where an issue is moot on its face, theapplication of any of the exceptions should be subjected to astrict test because it is a deviation from the general rule. TheCourt should carefully test the exceptions to be applied fromthe perspectives both of legality and practical effects, and showby these standards that the issue absolutely requires to beresolved.

I do not believe that the exceptions were so tested andconsidered under the ponencia.

c. The Ponencia’s Positions Refuted

i. Mootness and this Court’s TRO

A first point the ponencia stresses with preeminence in itsdiscussion of the mootness issue is the observation that “thesigning of the MOA-AD did not push through due to the court’sissuance of a Temporary Restraining Order.” The implication, itseems, is that the intervening events subsequent to the filingof the petition and the issuance of the temporary restraining13 Lis mota means the cause of the suit or action, 4 Campb.; Moldex

Realty, Inc. v. HLURB, G.R. No. 149719, June 21, 200[7], 525 SCRA198.


order (TRO) – specifically, the respondents’ commitment thatthe MOA-AD shall not be signed in its present form or in anyother form,14 and the President’s act of dissolving the GRPnegotiating panel15 – had no effect on the petitions becausethe signing of the MOA-AD had by then been stopped by ourTRO. I find this a disturbing implication as the petitions forprohibition presented live controversies up to and beyond theissuance of this Court’s TRO; they were rendered moot only bythe above mentioned intervening events. By these interveningand unequivocal acts, the respondents effectivelyacknowledged that the MOA-AD should indeed not be signedas demanded by the petition. Thus, the TRO from this Courtonly immediately ensured that the MOA-AD would not besigned until this Court had spoken on the constitutional andstatutory grounds cited by the petitions, but it was therespondents’ acts that removed from controversy the issue ofwhether the MOA-AD should be signed or not. In simpler terms,after the respondents declared that the MOA-AD would not besigned, there was nothing left to prohibit and no rights on thepart the petitioners continued to be at risk of violation by theMOA-AD. Thus, further discussion of the constitutionality ofthe MOA-AD now serves no useful purpose; as the discussionbelow will show, there may even be a considerable downsidefor our national interests if we inject another factor and anotheractor in the Mindanao conflict by ruling on theunconstitutionality of the MOA-AD.

ii. Mootness and Constitutional Implications

The ponencia posits as well that the MOA-AD has not beenmooted because it has far-reaching constitutional implicationsand contains a commitment to amend and effect necessarychanges to the existing legal framework. The same reasonpresented above suffices to defuse the ponencia’s fear aboutthe adverse constitutional effects the MOA-AD may bring or

14 Respondents’ Compliance dated September 1, 2008 citing theExecutive Secretary’s Memorandum dated August 28, 2008.

15 Respondents’ Manifestation dated September 4, 2008 citing theExecutive Secretary’s Memorandum dated September 3, 2008.


might have brought: without a signed MOA-AD none of thesefeared constitutional consequences can arise.

From another perspective, what the ponencia appears tofear are the constitutional violations and adverse consequencesof a signed and effective MOA-AD. These fears, however, arerelegated to the realm of speculation with the cancellation ofthe signing of the MOA-AD and the commitment that it shallnot be signed in its present or any other form. Coupled with thesubsequent dissolution of the GRP negotiating panel, thegovernment could not have communicated and conveyed anystronger message, short of totally scuttling the whole peaceprocess, that it was not accepting the points covered by theaborted MOA-AD. Government motivation for disavowing theaborted agreement is patently evident from Executive OrderNo. 3 that outlines the government’s visions and intentions inthe conduct of peace negotiations. That the GRP negotiatingpanel came up with a different result is a matter between theExecutive and the negotiating panel and may be the immediatereason why the Executive’s response was to forthwith dissolvethe negotiating panel.

iii. GRP Obligation to Discuss Ancestral Domain

A consistent concern that runs through the ponencia is that thePhilippines is bound under the GRP-MILF Tripoli Agreement onPeace signed by the government and the MILF in June 2001 tohave an agreement on the Bangsamoro ancestral domain. Thisconcern led the ponencia to conclude that the governmentdecision not to sign the MOA-AD will not render the presentpetitions moot. In other words, the MOA-AD will recur andhence should be reviewed now.

A basic flaw in this conclusion is its unstated premise thatthe Philippines is bound to come to an agreement on ancestraldomain, thereby equating the commitment to discuss this issuewith the obligation to have an agreement. To quote theponencia’s cited Tripoli Agreement of June 2001,16 the provisionon Ancestral Domain Aspect reads:

16 Whose full title is “Agreement on Peace between the Government ofthe Republic of the Philippines and the Moro Islamic Liberation Front.”


On the aspect of ancestral domain, the Parties, in order toaddress the humanitarian and economic needs of theBangsamoro people and preserve their social and culturalheritage and inherent rights over their ancestral domain, agreethat the same be discussed further by the Parties in their nextmeeting.” [Emphasis supplied]

Under these terms, it is plain that the GRP’s commitmentextends only to the discussion of the ancestral domain issue.The agreement to discuss, however, does not bind the GRP tocome to an agreement; the GRP is merely bound to try to reachan agreement or compromise. Implicit in this commitment isthat the Philippines can always say “no” to unacceptableproposals or walk away from the discussion if it finds theproposed terms unacceptable. This option has not beenremoved from the Philippines under any of the duly signedagreements on the Mindanao peace process. I believe that thisis the message that should come out in bold relief, not theponencia’s misreading of the June 2001 agreement.

With the present MOA-AD effectively scuttled, the partiesare back to the above quoted agreement under which the GRPbound itself to discuss ancestral domain with the MILF as partof the overall peace process. If the ponencia’s fear relates tothe substance of these future talks, these matters are not forthis Court to rule upon as they belong to the realm of policy – amatter for other branches of government other than theJudiciary to determine. This Court can only speak with full forceand authority on ripe, live, and actual controversies involvingviolations of constitutional or statutory rights.17 As a rule, courtslook back to past actions, using the Constitution, laws, rulesand regulations as standards, to determine disputes andviolations of constitutional, and statutory rights; the legislatureand the executive, on the other hand, look forward to addresspresent and future situations and developments, with theiractions limited by existing constitutional, statutory andregulatory parameters that the courts are duty-bound tosafeguard. Thus, if this Court can speak at all on the substance17 See: Badoy v. Ferrer, G.R. No. L-32546, October 17, 1970, 35 SCRA

285; Kilosbayan v. Garcia, G.R. No. 113375, May 5, 1994, 232 SCRA110.


of future talks, this can only be by way of a reminder that thegovernment’s positions can only be within constitutional andstatutory parameters and subject to the strict observance ofrequired constitutional and statutory procedures if futurechanges to the constitution and to current statutes arecontemplated.

iv. Mootness and Paramount Public Interest

In justifying the application of the exception on the basis ofparamount public interest, the ponencia noted that the MOA-AD involved a significant part of the country’s territory and wide-ranging political modifications for affected local governmentunits. It also claimed that the need for further legal enactmentsprovides impetus for the Court to provide controlling principlesto guide the bench, the bar, the public and the government andits negotiating entity.18

Unfortunately, the ponencia’s justifications on these pointspractically stopped at these statements. Suprisingly, it did noteven have an analysis of what the paramount public interest isand what would best serve the common good under the failedsigning of the MOA-AD. We note, as a matter of judicialexperience, that almost all cases involving constitutional issuesfiled with this Court are claimed to be impressed with publicinterest. It is one thing, however, to make a claim and anotherthing to prove that indeed an interest is sufficiently public,ripe, and justiciable to claim the attention and action of thisCourt. It must be considered, too, that while issues affectingthe national territory and sovereignty are sufficiently weightyto command immediate attention, answers and solutions tothese types of problems are not all lodged in the Judiciary;more than not, these answers and solutions involve matters ofpolicy that essentially rest with the two other branches ofgovernment under our constitutional system,19 with theJudiciary being called upon only where disputes and grave abuseof discretion arise in the course applying the terms of the18 Ponencia, p. 33.19 See: La Bugal-B’laan Tribal Association, Inc. v. Ramos, G.R. No. 127882,

December 1, 2004, 445 SCRA 1; Abakada Guro Party List v. Ermita,G.R. No. 168056, September 1, 2005, 469 SCRA 1.


Constitution and in implementing our laws.20 Where policy isinvolved, we are bound by our constitutional duties to leavethe question for determination by those duly designated bythe Constitution – the Executive, Congress, or the people intheir sovereign capacity.

In the present case, the peace and order problems ofMindanao are essentially matters for the Executive to address,21

with possible participation from Congress and the sovereignpeople as higher levels of policy action arise. Its search forsolutions, in the course of several presidencies, has led theExecutive to the peace settlement process. As has been pointedout repetitively in the pleadings and the oral arguments, thelatest move in the Executive’s quest for peace – the MOA-AD -would have not been a good deal for the country if it hadmaterialized. This Court, however, seasonably intervened andaborted the planned signing of the agreement. The Executive,for its part, found it wise and appropriate to fully heed the signalsfrom our initial action and from the public outcry the MOA-ADgenerated; it backtracked at the earliest opportunity in a mannerconsistent with its efforts to avoid or minimize bloodshed whilepreserving the peace process. At the moment, the peace andorder problem is still with the Executive where the mattershould be; the initiative still lies with that branch ofgovernment. The Court’s role, under the constitutional schemethat we are sworn to uphold, is to allow the initiative to bewhere the Constitution says it should be.22 We cannot andshould not interfere unless our action is unavoidably necessarybecause the Executive is acting beyond what is allowable, orbecause it has failed to act in the way it should act, under theConstitution and our laws.

My conclusion is in no small measure influenced by twobasic considerations.

First, the failure to conclude the MOA-AD as originallyarranged by the parties has already resulted in bloodshed in20 NHA v. Reyes, G.R. No. L-49439, June 29, 1983, 123 SCRA 245.21 CONSTITUTION, Article VII, Sections 1 and 18.22 See: Fariñas v. Executive Secretary, G.R. No. 147387, December 10,

2003, 417 SCRA 503.


Mindanao, with blood being spilled on all sides, third partycivilians included. Some of the spilled blood was not in actualcombat but in terror bombings that have been inflicted on theurban areas. To date, the bloodletting has showed no signs ofabating.

Lest we become confused in our own understanding of theissues, the problems confronting us may involve the socio-economic and cultural plight of our Muslim and our indigenousbrothers, but at core, they are peace and order problems.Though others may disagree, I believe that socio-economic andcultural problems cannot fully be addressed while peace andorder are elusive. Nor can we introduce purely pacific solutionsto these problems simply because we are threatened withviolence as an alternative. History teaches us that those whochoose peace and who are willing to sacrifice everything else forthe sake of peace ultimately pay a very high price; they alsolearn that there are times when violence has to be embracedand frontally met as the price for a lasting peace. This was thelesson of Munich in 1938 and one that we should not forgetbecause we are still enjoying the peace dividends the worldearned when it stood up to Hitler.23 In Mindanao, at the veryleast, the various solutions to our multi-faceted problemsshould come in tandem with one another and never out of fearof threatened violence.

Rather than complicate the issues further with judicialpronouncements that may have unforeseen or unforeseeableeffects on the present fighting and on the solutions alreadybeing applied, this Court should exercise restraint as the fearsimmediately generated by a signed and concluded MOA-ADhave been addressed and essentially laid to rest. Thus, ratherthan pro-actively act on areas that now are more executive thanjudicial, we should act with calibrated restraint along the linesdictated by the constitutional delineation of powers. Doing socannot be equated to the failure of this Court to act as its judicial23 In 1938, Prime Minister Neville Chamberlain triumphantly returned

to London from a peace agreement with Adolf Hitler in Munich,Germany. The Prime Minister then triumphantly announced thatthat he has been assured “peace for our time.” Hitler started theSecond World War on September 1, 1939.


duty requires; as I mentioned earlier, we have judiciallyaddressed the concerns posed with positive effects and weshall not hesitate to judicially act in the future, as may benecessary, to ensure that the integrity of our constitutional andstatutory rules and standards are not compromised. If weexercise restraint at all, it is because the best interests of thenation and our need to show national solidarity at this point sorequire, in order that the branch of government in the bestposition to act can proceed to act.

Second, what remains to be done is to support thegovernment as it pursues and nurses the peace process back toits feet after the failed MOA-AD. This will again entailnegotiation, not along the MOA-AD lines as this recourse hasbeen tried and has failed, but along other approaches that willfully respect our Constitution and existing laws, as had beendone in the 1996 MNLF agreement. In this negotiation, theExecutive should be given the widest latitude in exploringoptions and initiatives in dealing with the MILF, the Mindanaopeace and order problem, and the plight of our Muslim brothersin the long term. It should enjoy the full range of these options– from changes in our constitutional and statutory frameworkto full support in waging war, if and when necessary – subjectonly to the observance of constitutional and statutory limits. Ina negotiation situation, the worse situation we can saddle theExecutive with is to wittingly or unwittingly telegraph theExecutive’s moves and our own weaknesses to the MILF throughour eagerness to forestall constitutional violations. We caneffectively move as we have shown in this MOA-AD affair, butlet this move be at the proper time and while we ourselvesobserve the limitations the Constitution commonly impose onall branches of government in delineating their respective roles.

v. The Need for Guidelines from this Court

The cases of David v. Macapagal-Arroyo, Sanlakas v. ExecutiveSecretary, and Lacson v. Perez presented a novel issue thatuncovered a gray area in our Constitution: in the absence of aspecific constitutional provision, does the President have thepower to declare a state of rebellion/national emergency? Ifthe answer is in the affirmative, what are the consequences ofthis declaration?


David v. Macapagal-Arroyo answered these questions andwent on to further clarify that a declaration of a state of nationalemergency did not necessarily authorize the President toexercise emergency powers such as the power to take overprivate enterprises under Section 17, Article XII of theConstitution. Prior to this case, the correlation between Section17, Article XII and the emergency powers of the President underSection 23(2), Article VI has never been considered.

In contrast, the present petitions and the interveningdevelopments do not now present similar questions thatnecessitate clarification. Since the MOA-AD does not exist as alegal, effective, and enforceable instrument, it can neither beillegal nor unconstitutional. For this reason, I have not botheredto refute the statements and arguments about itsunconstitutionality. I likewise see no reason to wade into therealm of international law regarding the concerns of some ofmy colleagues in this area of law.

Unless signed and duly executed, the MOA-AD can onlyserve as unilateral notes or a “wish list” as some have taken tocalling it. If it will serve any purpose at all, it can at most serveas an indicator of how the internal processes involving the peacenegotiations are managed at the Office of the President. Butthese are matters internal to that Office so that this Court cannotinterfere, not even to make suggestions on how proceduralmistakes made in arriving at the aborted MOA-AD should becorrected.

To be sure, for this Court to issue guidelines relating tounapplied constitutional provisions would be a useless exerciseworse than the “defanging of paper tigers” that Mr. Justice DanteO. Tinga abhorred in David v. Macapagal-Arroyo.24 In terms ofthe results of this exercise, the words of former Chief JusticeArtemio Panganiban in Sanlakas v. Executive Secretary are mostapt – “nothing is gained by breathing life into a dead issue.”25

24 Supra note 2, at p. 282–283.25 G.R. 159085, February 3, 2004, 421 SCRA 656, 682.


vi. The “Capable of Repetition but Evading Review”Exception

The best example of the “capable of repetition yet evadingreview” exception to mootness is in its application in Roe v.Wade,26 the U.S. case where the American Supreme Courtcategorically ruled on the legal limits of abortion. Given that afetus has a gestation period of only nine months, the case couldnot have worked its way through the judicial channels all theway up to the US Supreme Court without the disputedpregnancy being ended by the baby’s birth. Despite the birthand the patent mootness of the case, the U.S. Supreme Courtopted to fully confront the abortion issue because it was asituation clearly capable of repetition but evading review – theissue would recur and would never stand effective review ifthe nine-month gestation period would be the Court’s onlywindow for action.

In the Philippines, we have applied the “capable ofrepetition but evading review” exception to at least two recentcases where the Executive similarly backtracked on the courseof action it had initially taken.

The earlier of these two cases – Sanlakas v. ExecutiveSecretary27 – involved the failed Oakwood mutiny of July 27,2003. The President issued Proclamation No. 427 and GeneralOrder No. 4 declaring a “state of rebellion” and calling out thearmed forces to suppress the rebellion. The President liftedthe declaration on August 1, 2003 through Proclamation No.435. Despite the lifting, the Court took cognizance of thepetitions filed based on the experience of May 1, 2001 when asimilar “state of rebellion” had been imposed and lifted andwhere the Court dismissed the petitions filed for theirmootness.28 The Court used the “capable of repetition butevading review” exception “to prevent similar questions fromre-emerging x x x and to lay to rest the validity of the declaration

26 410 U.S. 113 (1973).27 Supra note 24, at p. 665.28 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 757.


of a state of rebellion in the exercise of the President’s callingout power, the mootness of the petitions notwithstanding.”

The second case (preeminently cited in the presentponencia) is David v. Macapagal-Arroyo. The root of this casewas Proclamation No. 1017 and General Order No. 5 that thePresident issued in response to the conspiracy among militaryofficers, leftist insurgents of the New People’s Army, andmembers of the political opposition to oust or assassinate heron or about February 24, 2006. On March 3, 2006, exactly oneweek after the declaration of a state of emergency, the Presidentlifted the declaration. In taking cognizance of the petitions, theCourt justified its move by simply stating that “the respondents’contested actions are capable of repetition.”

Despite the lack of extended explanation in David v.Macapagal-Arroyo, the Court’s actions in both cases areessentially correct because of the history of “emergencies” thathad attended the administration of President Macapagal-Arroyosince she assumed office. Thus, by the time of David v.Macapagal-Arroyo, the Court’s basis and course of action inthese types of cases had already been clearly laid.

This kind of history or track record is, unfortunately, notpresent in the petitions at bar and no effort was ever exerted bythe ponencia to explain why the exception should apply.Effectively, the ponencia simply textually lifted the exceptionfrom past authorities and superimposed it on the present casewithout looking at the factual milieu and surroundingcircumstances. Thus, it simply assumed that the Executive andthe next negotiating panel, or any panel that may be convenedlater, will merely duplicate the work of the respondent peacepanel.

This assumption is, in my view, purely hypothetical and hasno basis in fact in the way David v. Macapagal-Arroyo had, or inthe way the exception to mootness was justified in Roe v. Wade.As I have earlier discussed,29 the ponencia’s conclusion madeon the basis of the GRP-MILF Peace Agreement of June 2001 ismistaken for having been based on the wrong premises.29 See: pp. 6–7 [pp. 334–336 here] of this Concurring and Dissenting

Opinion.


Additionally, the pronouncements of the Executive on theconduct of the GRP negotiating panel and the parameters of itsactions are completely contrary to what the ponencia assumed.

Executive Order No. 3 (entitled Defining Policy andAdministrative Structure for Government’s Comprehensive PeaceEfforts) sets out the government’s visions and the structure bywhich peace shall be pursued. Thus, its Section 2 states TheSystematic Approach to peace; Section 3, The Three Principlesof the Comprehensive Peace Process; Section 4, The Six Pathsto Peace; and Section 5(c) the Government Peace NegotiatingPanels.30 The Memorandum of Instructions from the Presidentdated March 2001 to the Government Negotiating Panel, statesamong others that:

30 SEC. 2. The Systematic Approach to Peace. The government shallcontinue to pursue a comprehensive, integrated and holisticapproach to peace that is guided by the principles and processeslaid down in this Executive Order. These shall provide the frameworkfor the implementation, coordination, monitoring and integrationof all government peace initiatives, and guide its partnership withcivil society in the pursuit of a just and enduring peace.

SEC. 3. The Three Principles of the Comprehensive Peace Process. Thecomprehensive peace process shall continue to be governed by thefollowing underlying principles:

a. A comprehensive peace process should be community-based,reflecting the sentiments, values and principles important toall Filipinos. Thus, it shall be defined not by the governmentalone, nor by the different contending groups only, but by allFilipinos as one community.

b. A comprehensive peace process aims to forge a new socialcompact for a just, equitable, humane and pluralistic society.It seeks to establish a genuinely pluralistic society, where allindividuals and groups are free to engage in peacefulcompetition for predominance of their political programswithout fear, through the exercise of rights and libertiesguaranteed by the Constitution, and where they may competefor political power through an electoral system that is free,fair and honest.


1. The negotiations shall be conducted in accordance withthe mandates of the Philippine Constitution, the Rule ofLaw, and the principles of the sovereignty and territorialintegrity of the Republic of the Philippines.

c. A comprehensive peace process seeks a principled andpeaceful resolution to the internal armed conflicts, with neitherblame nor surrender, but with dignity for all concerned.

SEC. 4. The Six Paths to Peace. The components of the comprehensivepeace process comprise the processes known as the “Paths toPeace”. These components processes are interrelated and notmutually exclusive, and must therefore be pursued simultaneouslyin a coordinated and integrated fashion. They shall include, butmay not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. Thiscomponent involves the vigorous implementation of variouspolicies, reforms, programs and projects aimed at addressingthe root causes of internal armed conflicts and social unrest.This may require administrative action, new legislation, oreven constitutional amendments.

b. CONSENSUS-BUILDING AND EMPOWERMENT FOR PEACE. Thiscomponent includes continuing consultations on bothnational and local levels to build consensus for a peace agendaand process, and the mobilization and facilitation of people’sparticipation in the peace process.

c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENT REBELGROUPS. This component involves the conduct of face-to-facenegotiations to reach peaceful settlement with the differentrebel groups. It also involves the effective implementation ofpeace agreements.

d. PROGRAMS FOR RECONCILIATION, REINTEGRATION INTOMAINSTREAM SOCIETY AND REHABILITATION. This componentincludes programs to address the legal status and security offormer rebels, as well as community-based assistanceprograms to address the economic, social and psychologicalrehabilitation needs of former rebels, demobilized combatantsand civilian victims of the internal armed conflicts.


2. The negotiation process shall be pursued in line with thenational Comprehensive Peace Process, and shall seek aprincipled and peaceful resolution of the armed conflict,with neither blame nor surrender, but with dignity for allconcerned.

e. ADDRESSING CONCERNS ARISING FROM CONTINUING ARMEDHOSTILITIES. This component involves the strictimplementation of laws and policy guidelines, and theinstitution of programs to ensure the protection of non-combatants and reduce the impact of the armed conflict oncommunities found in conflict areas.

f. BUILDING AND NURTURING A CLIMATE CONDUCIVE TO PEACE.This component includes peace advocacy and peace educationprograms, and the implementation of various confidence-building measures.

SEC. 5. Administrative Structure. The Administrative Structure forcarrying out the comprehensive peace process shall be as follows:

C. GOVERNMENT PEACE NEGOTIATING PANELS. There shall beestablished Government Peace Negotiating Panels (GPNPs) fornegotiations with different rebel groups, to be composed of aChairman and four members who shall be appointed by thePresident as her official emissaries to conduct negotiations,dialogues, and face-to-face discussions with rebel groups.

They shall report to the President, through the PAPP, on theconduct and progress of their negotiations. The GPNPs shalleach be provided technical support by a Panel Secretariatunder the direct control and supervision of the respective PanelChairman. They shall be authorized to hire consultants and toorganize their own Technical Committees to assist in thetechnical requirements for the negotiations.

Upon conclusion of a final peace agreement with any of therebel groups, the concerned GPNP shall be dissolved. Its PanelSecretariat shall be retained in the Office of the PresidentialAdviser on the Peace Process (OPAPP) for the purpose ofproviding support for the monitoring of the implementation ofthe peace agreement.


x x x x



b. Coordinated Third Party Facilitation, where needed;

c. Consultations with affected communities andsectors.31

Under these clear terms showing the Executive’s vision onhow the peace process and the negotiations shall proceed, Ibelieve that it is fallacious to assume that any renewednegotiation with the MILF will entail a repetition of the discardedMOA-AD. Understandably, it may be asked why the MOA-ADturned out the way it did despite the negotiating panel’s clearmarching orders. The exact answer was never clarified duringthe oral arguments and I can only speculate that at some point,the negotiating panel lost its bearings and deviated from theclear orders that are still in force up to the present time. As Imentioned earlier,32 this may be the reason why thenegotiating panel was immediately dissolved. What is importantthough, for purposes of this case and of the peace and ordersituation in Mindanao, is that the same marching orders fromthe Executive are in place so that there is no misunderstandingas to what that branch of government seeks to accomplish andhow it intends this to be done.

The fact that an issue may arise in the future – a distinctpossibility for the ponencia – unfortunately does not authorizethis Court to render a purely advisory opinion, i.e., one where adetermination by this Court will not have any effect in the “realworld.” A court’s decision should not be any broader than isrequired by the precise facts. Anything remotely resembling31 President Arroyo’s Memorandum of Instructions dated March 1,

2001; Paragraph 1 above, was reiterated in the President’sMemorandum of Instruction dated September 8, 2003.

32 See p. 6 [pp. 334–335 here] of this Concurring and DissentingOpinion.


an advisory opinion or a gratuitous judicial utterance respectingthe meaning of the Constitution must altogether be avoided.33

At best, the present petitions may be considered to be fordeclaratory relief, but that remedy regrettably is not withinthis Court’s original jurisdiction, as I have pointed out earlier.34

Finally, let me clarify that the likelihood that a matter willbe repeated does not mean that there will be no meaningfulopportunity for judicial review35 so that an exception tomootness should be recognized. For a case to dodge dismissalfor mootness under the “capable of repetition yet evadingreview” exception, two requisites must be satisfied: (1) theduration of the challenged action must be too short to be fullylitigated prior to its cessation or expiration; and (2) there mustbe reasonable expectation that the same complaining partywill be subjected to the same action again.36

The time constraint that justified Roe v. Wade, to be sure,does not inherently exist under the circumstances of thepresent petition so that judicial review will be evaded in a futurelitigation. As this Court has shown in this case, we can respondas fast as the circumstances require. I see nothing that wouldbar us from making a concrete ruling in the future should theexercise of our judicial power, particularly the exercise of thepower of judicial review, be justified.

vii. The Right to Information

The petitions for mandamus essentially involved the demandfor a copy of the MOA-AD based on the petitioners’ right toinformation under Section 7, Article III of the 1987 Constitution.In light of the commonly-held view that the mandamus aspect

33 Van Alstyne, W., Judicial Activism and Judicial Restraint,< h t t p : / / n o v e l g u i d e . c o m / a / d i s c o v e r / e a m c _ 0 3 / e a m c _03_01379.html> (last visited October 12, 2008).

34 See p. 3 [pp. 331–332 here] of this Concurring and DissentingOpinion.

35 State of North Dakota v. Hansen, 2006 ND 139.36 Hain v. Mullin, 327 F.3d 1177, 1180 (10th Cir. 2003) citing United

States v. Seminole Nation, 327 F.3r 939 10th Cir. 2002.


of the petitions is now moot, focus now shifts to the right toconsultation (an aspect of the constitutional right to informationand as guaranteed under the Indigenous People’s Rights Act37

and the Local Government Code)38 that the petitioners nowcapitalize on to secure the declaration of the nullity of the MOA-AD.

I note in this regard though that it is not so much the lack ofconsultations that the petitioners are rallying against, but thepossibility under the MOA-AD’s terms that they may be deprivedof their lands and properties without due process of law (i.e.,that the lumads’ ancestral domains will be included in andcovered by the Bangsamoro Juridical Entity [BJE] without thebenefit of prior consultations).39 Thus, the equation they presentto this Court is: lack of consultations = deprivation of propertywithout due process of law.

The short and quick answer to this proprietary concern isthat the petitioners’ claim is premature. With the MOA-ADunsigned, their fears need not materialize. But even with asigned MOA-AD, I do not believe that the immediatedeprivation they fear and their due process concerns are validbased alone on the terms of this aborted agreement. Underthese terms, the MOA-AD’s execution and signing are but partsof a series of acts and agreements; its signing was not be thefinal act that would render its provisions operative. The MOA-AD itself expressly provides that the mechanisms andmodalities for its implementation will still have to be spelledout in a Comprehensive Compact and will require amendmentsto the existing legal framework. This amendatory process, underthe Constitution, requires that both Congress and the peoplein their sovereign capacity be heard. Thus, the petitioners couldstill fully ventilate their views and be heard even if the MOA-AD had been signed.

37 Republic Act No. 8371.38 Republic Act No. 7160.39 Petition filed by the Province of North Cotabato in G.R. No. 186591,

p. 24–25; Memorandum filed the Province of North Cotabato, p. 71.


It is in the above sense that I doubt if the ponencia’s citedcase – Chavez v. PEA40 – can serve as an effective authority forthe ponencia’s thesis: that the process of negotiations as wellas the terms of the MOA-AD should have been fully disclosedpursuant to the people’s right to information under Section 7,Article III and the government’s duty to disclose under Section28, Article II of the Constitution. The Chavez case dealt with acommercial contract that was perfected upon its signing;disclosure of information pertaining to the negotiations wastherefore necessary as an objection after the signing wouldhave been too late. As outlined above, this feature of acommercial contract does not obtain in the MOA-AD becausesubsequent acts have to take place before the points it coverscan take effect. But more than this, the contract involved inChavez and the purely commercial and proprietary interests itrepresents cannot simply be compared with the MOA-AD andthe concerns it touched upon – recognition of a new juridicalentity heretofore unknown in Philippine law, its impact onnational sovereignty, and its effects on national territory andresources. If only for these reasons, I have to reject theponencia’s conclusions touching on the right to information andconsultations.

My more basic disagreement with the ponencia’s treatmentof the right to information and the duty of disclosure is itsseeming readiness to treat these rights as stand-alone rightsthat are fully executory subject only to the safeguards thatCongress may by law interpose.

In the first place, it was not clear at all from the ponencia’scited constitutional deliberations that the framers intendedthe duty of disclosure to be immediately executory. The citeddeliberation recites:

MR. DAVIDE: I would to get some clarifications on this. Mr.Presiding Officer, did I get the Gentleman correctly as havingsaid that this is not a self-executory provision? It would requirea legislation by Congress to implement?

40 G.R. No. 133250, July 9, 2002, 384 SCRA 152.


MR. OPLE: Yes. Originally, it was going to be self-executing, butI accepted an amendment from Commissioner Regalado, sothat the safeguards on national interests are modified by theclause “as may be provided by law.”

MR. DAVIDE: But as worded, does it not mean that this willimmediately take effect and Congress may provide forreasonable safeguards on the sole ground of national interest?

MR. OPLE: Yes. I think so, Mr. Presiding Officer, I said earlierthat it should immediately influence the climate of the conductof public affairs but, of course, Congress here may no longerpass a law revoking it, or if this is approved, revoking thisprinciple, which is inconsistent with this policy.41

In my reading, while Mr. Davide was sure of the thrust of hisquestion, Mr. Ople was equivocal about his answer. In fact, whathe actually said was that his original intention was for theprovision to be self-executing, but Mr. Regalado introduced anamendment. His retort to Mr. Davide’s direct question was acryptic one and far from the usual Ople reply – that the rightshould immediately influence the climate of public affairs, andthat Congress can no longer revoke it.

Mr. Ople’s thinking may perhaps be better understood ifthe exchanges in another deliberation – on the issue of whetherdisclosure should extend to the negotiations leading to theconsummation of a state transaction – is considered. Thefollowing exchanges took place:

MR. SUAREZ: And when we say ‘transactions’ which should bedistinguished from contracts, agreements, or treaties orwhatever, does the Gentleman refer to the steps leading to theconsummation of the contract, or does he refer to the contractitself?

MR. OPLE: The ‘transactions’ used here, I suppose is genericand therefore, it can cover both steps leading to a contractand already a consummated contract, Mr. Presiding Officer.

MR. SUAREZ: This contemplates inclusion of negotiationsleading to the consummation of the transaction.

41 Cited at p. 40 of the Ponencia; Record of the ConstitutionalCommission, Vol. V, pp. 28–29.


MR. OPLE: Yes, subject only to reasonable safeguards on thenational interest. 42

Thus, even if Mr. Ople did indeed mean that theconstitutional provisions on the right to information and theduty of disclosure may immediately be effective, theseprovisions have to recognize, other than those expresslyprovided by Congress, “reasonable safeguards on the nationalinterest.” In constitutional law, this can only refer to safeguardsinherent from the nature of the state transaction, the stateinterests involved, and the power that the state may bring tobear, specifically, its police power. Viewed in this light, the dutyto disclose the various aspects of the MOA-AD should not be assimplistic as the ponencia claims it to be as this subject againopens up issues this Court has only began to deal with in theNeri petition43 and the JPEPA controversy.44 Of course, this isnot the time nor the case for a full examination of theconstitutional right to information and the government’s dutyto disclose since the constitutionality of the MOA-AD is a deadissue.

As my last point on a dead issue, I believe that the ponenciadid not distinguish in its discussion between the disclosure ofinformation with respect to the peace process in general andthe MOA-AD negotiation in particular. I do not believe that thesetwo matters can be interchanged and discussed from the prismsof information and disclosure as if they were one and the same.The peace process as embodied in E.O. No. 3 relates to thewider government effort to secure peace in Mindanao throughvarious offices and initiatives under the Office of the Presidentinteracting with various public and private entities at differentlevels in Mindanao. The peace negotiation itself is only a partof the overall peace process with specifically named officialsundertaking this activity. Thus, the consultations for this generalpeace process are necessarily wider than the consultationsattendant to the negotiations proper that has been delegated

42 Record of the Constitutional Commission, Vol. V, pp. 24–25.43 Neri v. Senate Committee, G.R. No. 180643, March 25, 2008.44 Akbayan v. Aquino, G.R. No. 170516, July 16, 2008.


to the GRP Negotiating Panel. The dynamics and depth ofconsultations and disclosure with respect to these processesshould, of course, also be different considering their inherentlyvaried natures. This confusion, I believe, renders the validity ofthe ponencia’s discussions about the violation of the right toinformation and the government’s duty of disclosure highlydoubtful.

CONCLUSION

The foregoing reasons negate the existence of grave abuse ofdiscretion that justifies the grant of a writ of prohibition. Itherefore vote to DISMISS the consolidated petitions.


Ambassador Lauro Liboon Baja, Jr.has over 40 years of distinguisheddiplomatic experience thatincludes his appointments as thePhilippine Ambassador to Braziland Italy, and his designation asPhilippine Representative to theUnited Nations (2004) to overseeManila’s participation as a non-permanent member of the SecurityCouncil.

He led the PhilippineDelegation in a historic two-yearmembership in the Security Councilwhere he ably articulatedPhilippine positions on variousissues brought before the mostpowerful organ of the UN. He servedas president of the SecurityCouncil, first in June 2004 and in2005, and was responsible for thehistoric Security Council Summitin September 2005 chaired byPresident Arroyo, the first Filipinoand Asian head of state to presideover the Summit.

He was vice chairman ofsubsidiary bodies of the SecurityCouncil: the 1540 committee thatseeks to prevent terrorists fromacquiring and using weapons ofmass destruction and thesanctions committees on Liberiaand the Democratic Republic of

The Philippine National TerritoryThe Philippine National TerritoryThe Philippine National TerritoryThe Philippine National TerritoryThe Philippine National Territory∗∗∗∗∗

Ambassador Lauro L. Baja, Jr.

* Delivered at the Third Distinguished Lecture, Series of 2008, held onJune 27, 2008, at the Far Eastern University, Manila, published inthe 11 PHILJA JUDICIAL JOURNAL 31, 93–107 (2008).

Congo. He was also vice chairmanof the 1591 Committee tasked tomonitor the implementation of thearms embargo, travel ban andassets freeze against Sudan.

He was also recentlyrecognized by the NGO Group inthe Security Council for hiscontribution to internationalpeace and security and forenabling, for the first time, civilsociety and NGOs to participatein formal meetings of the SecurityCouncil.

He holds degrees injurisprudence and law from theUniversity of the Philippines andhas taken a Foreign Service Courseat the Oxford University.

355THE PHILIPPINE NATIONAL TERRITORY

am honored by the invitation of the Philippine JudicialAcademy of the Supreme Court of the Philippines toparticipate in their Third Distinguished Lecture and discuss

I. INTRODUCTION

with you the topic Metes and Bounds of Philippine Territory. Iam awed at the high level at which the Academy is operatedand by its mission which in the words of the Chief Justice is “todeepen and broaden our understanding of the law byconsidering the realism and the pragmatism of contemporaryprinciples and the theoretical and transcendental issues andthat will complete our vision of what the law is and ought tobe.”

The subject is important as it is relevant. It is important tohave an inventory of what we hold in common and know whatwe are and where we are as a nation. Knowing the metes andbounds of our national territory gives the nation a sense of self,and would help the Government and other countries especiallyin cases where there would be negotiations on overlappingmaritime regimes.

II. CONSTITUTIONAL PROVISIONS

The 1935, 1973, and 1987 Constitutions of the Philippines containprovisions on the national territory.

Under the 1935 Constitution, the Philippines comprises allterritory ceded to the United States by the Treaty of Parisconcluded between the US and Spain on December 10, 1998,the limits of which are set forth in Article III of said treaty,together with all the islands embraced in the treaty concludedbetween US and Spain on January 2, 1930, and all territory overwhich the present Government of the Philippines Islandsexercises jurisdiction. The 1935 Constitution is a colonialconstitution, approved by the President of the United States onMarch 23, 1935.

I


Under the 1973 Constitution, the national territorycomprises the Philippine archipelago, with all the islands andwaters embraced therein, and all the other territories belongingto the Philippines by historic right or legal title, including theterritorial sea, the airspace, the subsoil, the seabed, the insularshelves, and other submarine areas over which the Philippineshas sovereignty or jurisdiction. The waters around, betweenand connecting the islands of the archipelago, regardless oftheir breadth and dimensions, form part of the internal watersof the Philippines.

The 1987 Constitution provides that the national territorycomprises the Philippine archipelago, with all the islands andwaters embraced therein, and all other territories over whichthe Philippines has sovereignty or jurisdiction, consisting of itsterrestrial, fluvial and aerial domains including its territorialsea, the seabed, the subsoil, the insular shelves and othersubmarine areas. The waters around, between and connectingthe islands of the archipelago, regardless of their breadth anddimensions, form part of the internal waters of the Philippines.No reference is made to the Treaty of Paris and related treatiesin the 1973 and 1987 Constitutions.

The Philippine territory thus, falls into three groupings:

1. The Philippine archipelago;

2. Other territories over which the Philippines hassovereignty or jurisdiction; and

3. The Philippine waters, airspace and submarine areas.

III. THE PHILIPPINE NATIONAL TERRITORYAND THE UNITED NATIONS CONVENTION

ON THE LAW OF THE SEA

No international agreement has greater impact on PhilippineNational Territory than the United Nations Convention on the


Law of the Sea (UNCLOS). After three years of preparatorycommittee work and nine years of sessions of the UNConference on the Law of the Sea, UNCLOS was adopted onApril 30, 1982. It was opened for signature at Montego Bay,Jamaica, where 119 States signed on December 10, 1982, theConvention, including the Philippines. The Convention enteredinto force on November 16, 1994, more than 12 years after itsadoption. The Convention represents the codification and thecomprehensive and progressive development of theinternational law of the sea. It is generally considered by theinternational community as the legally accepted norm formaritime conduct, a “constitution for the oceans” governing allocean seas, exploitation of ocean resources, and the protectionof the maritime environment. The Philippines ratified theConvention on May 8, 1984.

The UNCLOS establishes zones of national jurisdiction.There are seven types of waters with varying regimesrecognized under the Convention, namely:

1. Internal or Domestic;

2. Archipelagic;

3. Territorial Sea;

4. Contiguous Zones;

5. 200-mile Exclusive Economic Zone;

6. Straits Used for International Navigation; and

7. High Seas.

There are certain aspects of the Convention which directlyaffect the Philippines. The first and foremost is Part IV of theConvention dealing with archipelagic states. The Philippines isthe pioneer proponent of the archipelagic principle in theinternational forum. In the First UN Conference on the Law ofthe Sea in 1958 and the Second Conference in 1960, thePhilippine delegation tried to push through the archipelagic


principle, but in both conferences, the principle failed to beadopted. The third UN Conference finally incorporated theprinciple into the Convention.

IV. ARCHIPELAGIC STATE

The Convention established the legal concept of the archipelagoas an integrated unit in which the islands, waters, and othernatural features form an integral, geographical, economic andpolitical entity.

Before Part IV of the Convention, the Philippines was inlegal effect dismembered, since international law recognizedonly a 3-mile territorial sea around every island so that in manyparts of the Philippines, the waters between the islands beyondthree miles from the shore of the opposite island wereregarded as open sea or international waters.

With Part IV of the Convention, no longer will the variousislands of the Philippines be regarded as separate units, eachwith its own maritime means and waters between them asdistinct from the land territory. The archipelagic state, like thePhilippines, is permitted to draw baselines around thearchipelago, connecting the outermost points of the outermostislands. All waters within the baselines, designated asarchipelagic waters, are under the sovereignty of thearchipelagic state regardless of their width and dimension. Thisnational sovereignty exists also with respect to the airspaceabove the archipelagic waters and to the seabed and subsoilbelow them and to all the resources, living or nonliving.

Let me take up the matter of the Philippine maritime limitsset by the Treaty of Paris and related treaties as they are affectedby UNCLOS. We have a wider territorial sea under the Treaty ofParis and related treaties. Our problem with the Treaty of Parisis getting other nations to accept these limits. Even the USexpressly opposed our claim, saying that Spain has ceded to USonly the islands inside the described limits in the treaty and


not the waters. The US contends that when she was exercisingsovereignty in the Philippines, she limited herself for threemiles around every island. Even Indonesia, also an archipelago,refused to support our claim to these “historic waters.”

The Philippine Delegation to UNCLOS, thus, opted foracceptance of the Convention because we believed that theConvention as a whole would be more beneficial to the Filipinopeople. We have in mind the recognition of the archipelagicprinciple and the provisions of the exclusive economic zone.This option was endorsed by the different groups and subgroupscreated by the cabinet Committee on the Law of the Sea whichwas tasked to study the Convention prior to the Philippines’ratification.

V. THE PHILIPPINES AND THEEXCLUSIVE ECONOMIC ZONE

The exclusive economic zone (EEZ) is one of the new conceptsin the Convention, as an additional maritime area of States. Inarchipelagic states, it is a belt around the archipelago morethan 200 nautical miles wide, measured from the archipelagicbase lines. The Philippines has certain rights in this exclusiveeconomic zone, namely:

1. Sovereign rights for the purpose of exploring andexploiting, conserving and managing the naturalresources whether living or nonliving of the waters andthe seabed and deep subsoil; and

2. Jurisdiction with regard to the establishment and useof artificial islands, installations and structures formaritime scientific research and protection andpreservation of the maritime environment.

The EEZ of the Philippines measures about 395,400 squarenautical miles. The area that we have been claiming as ourhistoric territorial sea extending the limits of the Treaty of Paris


measures 263,300 square nautical miles. The EEZ, therefore, isbigger than the territorial sea by 132,100 square nautical mileswhich is equivalent to about 45 million hectares where thePhilippines will be entitled to all the resources. Moreover,with the adoption of the archipelagic principle, the Philippinesgained 141,800 square nautical miles, or inside the baselines ora total gain of 93 million hectares.

It is also important to note the Philippines Declaration onthe signing of the Convention on the Law of the Sea where thecountry manifests:

1. The signing of the Convention by the Government ofthe Republic of the Philippines shall not in any mannerimpair or prejudice the sovereign rights of the Republicof the Philippines under and arising from theConstitution of the Philippines;

2. Such signing shall not in any manner affect thesovereign rights of the Republic of the Philippines assuccessor of the United States of America, under andarising out of the Treaty of Paris between Spain and theUnited States of America of December 10, 1898, and theTreaty of Washington between the United States ofAmerica and Great Britain of January 2, 1930;

3. Such signing shall not diminish or in any manner affectthe rights and obligations of the contracting partiesunder the Mutual Defense Treaty between thePhilippines and the United States of America on August30, 1951, and its related interpretative instrument; northose under any other pertinent bilateral or multilateraltreaty agreement to which the Philippines is a party;

4. Such signing shall not in any manner impair or prejudicethe sovereignty of the Republic of the Philippines overany territory over which it exercises sovereign authority,such as the Kalayaan Islands, and the waters appurtenantthereto;


5. The Convention shall not be construed as amending inany manner any pertinent laws and Presidential Decreesor Proclamations of the Republic of the Philippines; theGovernment of the Republic of the Philippinesmaintains and reserves the right and authority to makeany amendments to such laws, decrees or proclamationspursuant to the provisions of the PhilippineConstitution;

6. The provisions of the Convention on archipelagicpassage through sea lanes do not nullify or impair thesovereignty of the Philippines as an archipelagic stateover the sea lanes and do not deprive it of authority toenact legislation, protect its sovereignty,independence, and security;

7. The concept of archipelagic waters is similar to theconcept of internal waters under the Constitution ofthe Philippines, and removes straits connecting thesewaters with the economic zone or high sea from therights of foreign vessels to transit passage forinternational navigation;

8. The agreement of the Republic of the Philippines tothe submission for peaceful resolution, under any ofthe procedures provided in the Convention, of disputesunder Article 298 shall not be considered as a derogationof Philippine sovereignty.

The Declaration was made under Article 310 of theConventions which allows three categories of declarations,namely:

1. General Declarations;

2. Interpretative Declarations; and

3. Declarations Relating to Settlement of Disputes.

According to the late Senator Arturo Tolentino, who headedthe Philippine Delegation in all three UN conferences on the


law of the sea, we filed this declaration to give notice to othercountries signing the Convention that we have claims whichmay not be completely in harmony with the provision of theConvention in relation to our domestic legislation. TheDeclaration was circulated to all states which participated inthe drafting of the Convention.

Concerns have been expressed on the nature of archipelagicwaters in relation to our internal waters.

The sovereignty over archipelagic waters is subject to twokinds of passage by foreign ships. First, innocent passage andsecond, archipelagic sea lanes passage.

Innocent passage is well known in international law. It ispassage that is not prejudicial to the peace, good order orsecurity.

Archipelagic sea lanes passage means continuous andexpeditious or unobtrusive navigation or overflight through anabove sea lane that must be established by the archipelagicstate between one part of the high seas or EEZ and another partof the high seas or EEZ.

Archipelagic sea lanes passage must be distinguished fromtransit passage envisioned in straits used for internationalnavigation. The latter is imposed by the Convention;archipelagic sea lanes passages can be exercised only on suchsea lanes that the archipelagic state would want to designateor establish. Our straits are entirely within our archipelagicwaters and therefore cannot be said to be connecting our EEZor high seas with another part of the high seas or EEZ.

It is also important to note that the Convention providesfor solutions in case of overlapping boundaries in the territorialsea, EEZ, and the continental shelf.

In the case of the territorial seas that overlap, a median lineshall be drawn and each party gets one-half of the overlappingarea.


In the case of overlapping EEZ and continental shelf, theissue of overlap will be effected by agreement among theparties concerned. Failing agreement, the parties should resortto the settlement of disputes provision of the Convention.

VI. BASELINES

The importance of drawing baselines cannot beoveremphasized. It is from these baselines that the regime ofthe territorial sea, the contiguous zone, the exclusive economiczone and to a certain degree the continental shelf is measured.The Philippines has its own baselines law, Republic Act No.3048 and Republic Act No. 5446. They are not going to bedisturbed at all but we may have to amend existing baselineswhich do not conform to the requirements of the Convention.The longest baseline can only be 100 nautical miles with someexception that would extend to 125 nautical miles, providedthey do not exceed 3 percent of this total number of baselines.Therefore we have to adjust or do some installations to ourbaselines which exceed 100 miles. Our law cannot beautomatically modified or repealed by the Convention. Theycan be modified or repealed only by our own domestic lawswhich we reserve the right to pass.

VII. THE KALAYAAN GROUP OF ISLANDS

Will the drawing of baselines to include the Kalayaan Group ofIslands violate the UNCLOS? The Philippine Delegation believesthat it will not as long as we do not exceed the maximum lengthof the lines. The lines do not have to be drawn from largeislands as long as they are islands that are kept above the levelof the water. These islands can be used as point for drawingbaselines.

The Philippines has every logical reason to draw baselinesthat will include the Kalayaan Island Group (KIG). The Philippinesexercises effective jurisdiction over it considering the


establishment of a military garrison and local civil units there.The islands are considered part and parcel of the Republic ofthe Philippines by virtue of Presidential Decree 1596 of 1978.The Decree was registered with the UN Secretariat on May 14,1980.

The Kalayaan Island Group is part of the Spratly Group ofIslands. As we know, China, Taiwan, and Vietnam claim theentire Spratlys. All claimants, except Brunei, occupy parts ofthe Spratlys. Kalayaan is a fifth class municipality of Palawancomposed of seven islands, namely:

1. Pag-asu – 32.2 hectares

2. Likas – 18.6 hectares

3. Parola – 12.7 hectares

4. Lawak – 7.9 hectares

5. Kota – 6.45 hectares

6. Patag – 0.52 hectares

7. Panota – 0.44 hectares

The KIG adds to the Philippines’ exclusive economic zone,an area of 360, 850 square nautical miles.

That the Spratly Group of Islands, to which the KIG is a part,is claimed by other countries should reinforce rather than deterour determination to include the Kalayaan in drawing ourbaselines. The KIG is the most strategic area in our exclusiveeconomic zone, significant in terms of food, energy, navigation,trade and security. It is our national heritage, as the book editedby Porfirio Aliño and Christine Quibilan aptly describes in detailthe dynamics of the islands.

We must formulate policies and adopt measures which willnot diminish that heritage. To exclude Kalayaan and just say weare not abandoning our claim to the islands is empty rhetoricand does violence to common sense. An unlikely diplomaticfallout by including KIG in our baselines should not unduly worry


the Philippines. Nor should we entertain the bogey of warerupting over this issue.

Notes verbale and aide memoires are SOP noises, requiredin international relations, especially among claimant countries.We should be doing the same. In foreign relations, silence isnot golden all the time. Let us note that the signals which comefrom outside which gave the leadership of the country feet ofclay in drawing our baselines are mere talking points, if reportsare accurate.

Kalayaan and baselines are current challenges to PhilippinesDiplomacy. The Department of Foreign Affairs (DFA) shouldrestore and renew being primus inter pares on foreign policyissues and be confident, consistent, and committed in itsadvocacies of policies. There is a time for niceties and politesseand a time to be proactive, forceful, and aggressive ininternational relations. To be timid and pursue a serendipitousapproach on Kalayaan and baselines can be perfect diplomaticstorm of irrelevance for the Department. There is no greatertragedy for an institution than to find itself, too late, that it hasbecome irrelevant because of inaction and/or timidity.

These thoughts should apply to our attitude towards theTripartite Agreement for Joint Marine Seismic Undertaking(JMSU). The issue is sub judice. It is, however, relevant to notethat the area of JMSU falls within our EEZ; that seismic activitiesare precursors of exploration and exploitation of naturalresources; that the undertakings were signed by the oilauthorities of the three countries, and that if reports are true,one of the parties objected to let the undertaking lapse afterthree years. Previous attempts at joint exploration anddevelopment of the South China Sea failed because of noagreement on where it will be held. Let me just state that wemay have unwittingly allowed ourselves to be led back to thestatus where we were before we negotiated the Declarationon the Conduct of Parties in the South China Sea. The Associationof South East Asian Nations (ASEAN), led by the Philippines,


has always taken pride in convincing China to discuss withASEAN as a group the South China Sea as a regional andinternational issue instead of a bilateral issue among claimantcountries. JMSU may have put us back to square one. ThePhilippines may have unwittingly contributed to ASEAN againbeing sucked into vortex of irrelevance.

VIII. BACK TO THE FUTURE

It is urgent for the Philippines insofar as the metes and boundsof its national territory is concerned to draw its baselines as anarchipelagic state and consequently measure the extent of ourcontinental shelf, bearing in mind the deadline on May 13, 2009.The continental shelf comprises the seabed and subsoil of thesubmarine area beyond the territorial sea throughout thenatural prolongation of its land territory to the outer edge ofthe continental margin or to a distance of 200 nautical milesfrom the baselines from which the territorial sea is measuredwhen the outer edge of the continental margin does not extendup to that distance.

Time is of the essence for us to submit our claim to ourcontinental shelf as a natural prolongation of our law territory.

The proposal for a congressional commission on nationalterritory which would be given until December 31 to submit areport on national territory may be a bit late. Information andtechnical description on the limits of our continental shelfbeyond 200 nautical miles (which limits we are claiming) shouldbe submitted to the Commission on the Limits of the ContinentalShelf. The Commission shall evaluate the submission and makerecommendations to the coastal state on matters related tothe establishment of the outer limits of their continental shelf.Considering the process involved, a submission by thePhilippines even three months before its deadline maypreempt favorable consideration. It is also too late in the dayto debate whether we should be an archipelagic state or not,unless we intend to denounce UNCLOS.


It would be unrealistic to hope for a perfect definition ofthe national territory in the sense that it will be accepted by all.National governments invariably decide paramount issues noton idealistic considerations but on practical realities on theground. The Philippines should be unyielding insofar as nationalinterests are concerned. That is what the Philippine Delegationto UNCLOS did and that is what the Government should do soinsofar as the metes and bounds of our territory are concerned.

In the life of all nations, there come moments that decidethe direction of a country and reveal the character of its people.We are now of that moment. We bind the future by what we door fail to do in the present. I believe that the learned men andwomen of the Philippine Judicial Academy can extricate theleadership of the country from the present policy blind spot onbaselines and the continental shelf and rescue its leaders frominertia and inaction. This should promote national oceanconsciousness and would be a great oblation to stability andsecurity. It is time to give in to reason.


Reactions on the Metes and Bounds of theReactions on the Metes and Bounds of theReactions on the Metes and Bounds of theReactions on the Metes and Bounds of theReactions on the Metes and Bounds of thePhilippine National Territory:Philippine National Territory:Philippine National Territory:Philippine National Territory:Philippine National Territory:

An International LawAn International LawAn International LawAn International LawAn International Lawand Policy Perspectiveand Policy Perspectiveand Policy Perspectiveand Policy Perspectiveand Policy Perspective

∗∗∗∗∗

Jay L. Batongbacal, Esq.

∗Delivered at the Third Distinguished Lecture, Series of 2008, held onJune 27, 2008, at the Far Eastern University, Manila, published inthe 11 PHILJA JUDICIAL JOURNAL 31, 108–131 (2008).

Atty. Jay L. Batongbacal obtained hisBachelor of Arts in Political Science(1987) and Bachelor of Laws (1991)degrees from the University of thePhilippines, and his Master ofMarine Management degree (1996)from the Dalhousie University inCanada. He is also a DoctoralCandidate at the Dalhousie LawSchool.

Atty. Batongbacal specializes inthe Law of the Sea and internationalmarine environmental law issues.He has taught the IntegratedCoastal and Ocean Managementcourse at Dalhousie, and for thepast several years has been aregular guest lecturer for Law ofthe Sea and boundarynegotiations at the internationalOceans Institute of Canada.

He has published manyarticles on marine policy issues

both in the Philippines andinternationally, and has worked as aconsultant to government, non-government, and private sectororganizations.

He is presently at work on hisPh.D., focusing on the subject ofocean energy development andsocial-ecological justice.

369REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONALTERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE

I. INTRODUCTION

1 United Nations Convention on the Law of the Sea. Montego Bay,Jamaica. December 10, 1982. 1833 UNTS 396.

our Honors, distinguished guests, ladies andgentlemen, good afternoon. Forgive the “intrusion” ofbeing a surprise speaker at this Distinguished Lecture,

but I have been asked by the Honorable Justice Florentino P.Feliciano to speak on this topic, and I would not like todisappoint him. Thank you for your indulgence as I stand beforeyou due to a fortunate coincidence. I have taken time awayfrom my doctoral studies in Canada in order to accompany asenior member of the United Nations Commission on the Limitsof the Continental Shelf to hold a scientific and technicalworkshop to assist the Philippines in preparing a submissionfor an extended continental shelf. As they are old friends, I hadarranged for this senior member to meet with Justice Felicianoon the first day of our workshop, and it was during that meetingthat he informed us of this Distinguished Lecture. Subsequently,I was asked to come to this symposium to deliver some remarksbecause since 1996, I have also been studying many aspects ofinternational marine law, particularly concerning thePhilippines and the International Law of the Sea.

At the outset, I would like to clarify that, contrary to whatyou may have read in the newspapers, there is no deadline forsubmission to the United Nations of the metes and bounds ofthe national territory. There is no treaty, convention, or otheragreement stating this is to be done. What the May 13, 2009deadline refers to is the submission of technical and scientificinformation on the outer limits of the continental shelf beyond200 nautical miles, for countries intending to make such a claim,pursuant to Article 76 of the United Nations Convention on theLaw of the Sea (UNCLOS).1 The deadline is mentioned in AnnexII of the UNCLOS, which was originally set to 2004, or 10 yearsafter the entry into force of UNCLOS in 1994. An extension was

Y


later agreed upon at the 11th Meeting of the State Parties inMay 2001, by counting the 10-year period from the date offormal organization of the UN Commission on the Limits of theContinental Shelf on May 13, 1999.2 The continental shelfbeneath the sea, including the “extended” continental shelfbeyond 200 nautical miles, strictly speaking, is not the outerlimit of the national territory. In international law, “territory”refers specifically to land up to the low-water line, and thenature of any area beyond that is subject to rules of internationallaw, especially as codified in UNCLOS.

II. A CRISIS OF CONSISTENCY AND CONFUSION

The confusion over the nature of the 2009 deadline isemblematic of the general crisis of consistency and confusionthat pervades Philippine territorial and jurisdictional law. Thecrisis of consistency refers to the fact that there is a fundamentalinconsistency between the way Philippine national law hasconfigured the national maritime territories and jurisdictions,and the way in which international law has defined thelegitimate ways by which States may lay claim to maritimeterritories beyond their coasts. There is no question as to theterrestrial components of the national territory; but theinconsistency arises once we extend into the sea. In order toappreciate the stark difference, it is best to take a very graphicapproach to analyzing how current Philippine legislationconfigures our maritime zones, and compare them with what isacceptable under international law.

2 United Nations. Report of the Eleventh Meeting of State Parties,Paragraph 81, UN Doc. SPLOS 173 (June 14, 2001).


Figure 1. Philippine national boundaries shownin official Philippine maps

The so-called “international treaty limits” appear in officialmaps and charts issued by the Philippines to indicate thenational territory,3 and is shown in Figure 1. However, theapparent simplicity of the polygonal shape around the islandsof the archipelago in official maps and charts conceal themultiple sources and legal bases of the lines that define it.Figure 2 actually illustrates the different boundaries that arerevealed by the different treaties and legislation that determine3 See for example, National Mapping and Resource Information

Authority (NAMRIA), Nautical Chart No. 4200: The Republic of thePhilippines. Taguig City: National Mapping and ResourceInformation Authority, 2006. Also NAMRIA, Philippine Map withthe Kalayaan Island Group. Taguig City: NAMRIA, 2008.


the configuration of our maritime jurisdictions. A more detailedexposition of the historical development of Philippine maritimezone legislation has been done elsewhere.4 What must benoted is that each of these treaties and laws create maritimespaces that are qualitatively different from each other in subtleways, and the interaction between them results in aninconsistent patchwork of maritime jurisdictions.

Figure 2. Philippine maritime boundariesunder current legislation

4 See J. Batongbacal, The Maritime Territories and Jurisdictions ofthe Philippines and the United Nations Convention on the Law ofthe Sea. 76 PHILIPPINE LAW JOURNAL 2, Quezon City, Philippines, December2001, pp. 123–168.


As shown in Figure 2, we first see the limits of the originalTreaty of Paris of 1898 between the US and Spain,5 whichapparently omitted to enclose islands to the North and theSouthwest areas of the country. It was because of this omissionthat a second treaty, the Treaty of Washington, was signed in1900 to clarify that these islands that were not within the Treatyof Paris limits were also ceded to the US by Spain.6 Then in1930, the United States and the United Kingdom executed aConvention to further clarify the division of the islands betweentheir respective colonies in the area off the northern coast ofBorneo.7 When the 1935 Constitutional Convention debatedthe article on the national territory, it was noted that the non-inclusion of parts of the Batanes Islands in the North were dueto the technical description which located the line at the 20th

parallel, however, it was described as running through the BashiChannel which was located just above the 21st parallel. It wasthus proposed to unilaterally extend the Northern boundary tothis location in the article describing the national territory.8

This was not adopted in the eventual wording of the 1935Constitution, but has been implemented in all official mapsand charts issued by the Philippines.9 Not shown in Figure 2 is

5 Treaty of Peace between the United States of America and theKingdom of Spain, Paris, France, December 10, 1898, Article 111.

6 Sole Article, Treaty between the Kingdom of Spain and the UnitedStates of America for the Cession of Outlying Islands of thePhilippines, Washington, D.C., November 7, 1900.

7 Convention between the United States of America and Great BritainDelimiting the Boundary between the Philippine Archipelago andthe State of North Borneo, Washington, D.C., January 2, 1930, ArticleI.

8 RECORD of the Constitutional Convention, Volume 11, Journal No.21–40, in Lotilla, R.P. (Ed.) The Philippine National Territory, Manila:UP Institute of International Legal Studies and Foreign ServiceInstitute, 1995, at pp. 168–258.

9 See NAMRIA 2006 and NAMRIA 2008, supra note 3.


the extent of the continental shelf claimed by the Philippinessince 1949.10

In 1968, Republic Act No. 5446 was enacted to correcttypographical errors in earlier legislation (Republic Act No. 3046[1961]) to define the baselines of the Philippines.11 Thesestraight baselines were based on the rules in the Anglo-Norwegian Fisheries Case of the International Court of Justice,and asserted that all waters inside the baselines and betweenthe islands were considered as internal waters, while all watersoutside the baselines around the islands up to the limitsdescribed in the Treaty of Paris and Treaty of Washington wereterritorial waters.”12 In 1978, Presidential Decree No. 1596declared the entire area of the Kalayaan Group of Islands to beunder Philippine sovereignty and described this area in metesand bounds that attached to the treaty limits west of Palawan.13

At the same time, however, Presidential Decree No. 1599 wasissued declaring the Philippine Exclusive Economic Zone, whichdescribed a 200 nautical mile zone extending from the baselinesunder Republic Act No. 5446.14

10 Republic Act No. 387, The Petroleum Act of 1949, June 18, 1949,Section 3, and Proclamation No. 370, Declaring as Subject to theJurisdiction and Control of the Republic of the Philippines AllMineral and Other Natural Resources in the Continental Shelf ofthe Philippines, 1968. Neither instrument provides the geographicextent of the Philippine continental shelf.

11 Republic Act No. 5446, An Act to Amend Section I of Republic ActNo. 3046, entitled “An Act to Define the Baselines of the TerritorialSea of the Philippines,” September 18, 1968.

12 Section 2, Republic Act No. 3046 (1961) in relation to Section I, RANo. 5446 (1968).

13 Presidential Decree No. 1596, Declaring Certain Areas Part of thePhilippine Territory and Providing for Their Government andAdministration, June 11, 1978.

14 Presidential Decree No. 1599, Establishing an Exclusive EconomicZone and for Other Purposes, June 11, 1978.


The Philippines’ maritime zone configuration resulting fromthe above laws is in stark contradiction to generally acceptednorms of international law on the nature and extent of coastalState jurisdiction over its maritime areas. The fundamentalprinciple underlying maritime zones in international law is thatState sovereignty and jurisdiction steadily diminishes, thefarther one is from the shore. From the low-water line, Statesovereignty reduces to certain sovereign jurisdictions, and thento specific sovereign rights, until areas beyond nationaljurisdiction.

UNCLOS recognizes that coastal States are entitled tomaritime zones on the basis of specified distances from thebaselines. Within the baselines, States are entitled to internalwaters, which normally encompass bays, estuaries, and mouthsof rivers, but beyond those baselines, the zonal configurationsapply. Thus, coastal States are entitled to a territorial sea of upto 12 nautical miles within which it may exercise fullsovereignty,15 a contiguous zone of 24 nautical miles whereinthey exercise only certain jurisdictions,16 and an exclusiveeconomic zone of up to 200 nautical miles wherein they areentitled to only certain sovereign rights to the superjacentwaters.17 Beneath the waters, the seabed up to 200 nauticalmiles is considered as the continental shelf of the coastal state.18

But depending on certain conditions and characteristics of theseabed, this continental shelf may extend beyond 200 nauticalmiles up to a maximum of 350 nautical miles.19

15 The only limitation to this sovereignty is that they must allow theinnocent passage of ships through such waters. See Article 17,UNCLOS.

16 UNCLOS, Article 33.17 UNCLOS, Articles 55–57.18 UNCLOS, Article 76, paragraph I.19 UNCLOS, Article 76, paragraphs 4–6.


However, this steady reduction is not followed in Philippinelaw, and varies depending on the area, as indicated when onetraces the degree of sovereignty and jurisdictions establishedby law in different directions from certain points in thePhilippines. Philippine laws effectively create severe andillogical jurisdictional weaknesses between the shore and theoutermost limits of its maritime zones. Reference to Figure 2makes it easier to appreciate these inconsistencies generatedby our legislation. For one, we have territorial waters locatedoutside the EEZ in the northeastern and northwestern cornersof the treaty limits. Second, the westernmost area of theKalayaan Group of lslands is supposed to be a zone ofsovereignty,20 which in effect makes it internal, not merelyterritorial waters, but it is located beyond the EEZ. Third, inother areas, from the baselines to 200 nautical miles, our watersare declared to be EEZs, no territorial water areas in betweenhaving been reserved from the effect of PD No. 1599. And todate, we have been unable to negotiate the EEZ boundariesbetween ourselves and our neighboring countries to the Northand South, despite the mandate to do so,21 likely because themedian boundary will have to be located well inside the treatylimits in many places. These are the kinds of inconsistenciesthat generate confusion in the policies and implementation oflaw by government agencies, and effectively paralyze us fromtaking effective action to exercise our sovereignty andjurisdiction against foreign vessels and activities in thosequestionable areas.

Since other States are not bound by our laws, they may onlyrecognize maritime zones based on UNCLOS. Thus, as far as theinternational community is concerned, the Philippines’maritime zones are configured in the manner shown in Figure3.20 Declaring Certain Areas Part of the Philippine Territory and

Providing for Their Government and Administration, PresidentialDecree No. 1596 (1978), Section 1.

21 Establishing an Exclusive Economic Zone and for Other Purposes,Presidential Decree No. 1599 (1978), Section 1.


The Philippines first declared that its territorial watersextended up to the treaty limits in a Note Verbale to the UNSecretary General in 1958.22 But the United States immediatelyand later repeatedly denied that it ever considered the treatylimits as territorial boundaries23 and US state practice up to theend of the Commonwealth period did adhere to only the then-common 3-mile limit for the territorial sea.24 The phraseologyof the 1898 Treaty of Paris and 1930 US-UK Convention

Figure 3. Philippine maritime zones currently acceptable to theinternational community

22 Permanent Mission of the Philippines to the United Nations. NoteVerbale, January 20, 1956, in Lotilla 1995, at pp. 272–273.

23 In Lotilla 1995, at p. 274.24 R. Aquino, and C. Grino, Law of Natural Resources, Manila: E.F.

David & Sons, 1957, at pp. 425–426.


themselves expressly refer only to the status of the islands,25

and not the waters within or divided by the lines theydescribed. The fact that the 1900 Treaty of Washington referredto islands outside of the treaty limits26 is also consistent withthe US position. Recalling the ancient principle that “the springcannot rise higher than its source,” then it is indeed impossibleto anchor the Philippines’ sovereignty and jurisdiction over theentire areas within the treaty limits upon presumed successionto the sovereignty and jurisdiction of the United States.

Note the huge difference between Figure 3 and Figure 1.The difference illustrates the wide gap between what isprescribed in Philippine law, and that which is normallyacceptable to the international community. What should be ofconcern to us is that the international community’s currentperspective leaves large pockets of EEZs within the Philippines,between its component islands, the largest being the Sulu Sea.Within the EEZ, foreign States exercise high seas freedoms,while the Philippines only has certain sovereign rights.

This need not be the case, however. Under Part IV of theUNCLOS, the Philippines has the option of declaring itself to bean Archipelagic State. This allows the Philippines to eliminatethe pockets of EEZs between its islands, and convert them into

25 Article 3, Treaty of Paris, 1898 states that:

Spain cedes to the United States the archipelago knownas the Philippine Islands, and comprehending the islandslying within the following line x x x.

while Article I, Convention between the US and Great Britain, 1930,states that:

It is hereby agreed and declared that the line separatingthe islands belonging to the Philippine Archipelago onone hand and the islands belonging to the State of NorthBorneo which is under British protection on the other handshall be and is hereby established as follows x x x.

26 Sole Article, Treaty of Washington, 1930.


archipelagic waters that are recognized to be under itssovereignty.27

Figure 4 shows one possible configuration that this maytake.

Figure 4. One possible implementation of UNCLOS Part IV

27 UNCLOS, Article 49.

The concept of the Archipelagic State and sovereignty overarchipelagic waters is the result of the negotiations conductedby the Philippines along with Indonesia and a few other smallerisland states during the UNCLOS conferences. The internationalcommunity’s recognition is part of a compromise, and in returnfor recognition over a much larger area of waters (which non-archipelagic States cannot be similarly entitled to), Archipelagic


States must allow the innocent passage (in the same way thatcoastal States allow innocent passage through their territorialseas) and archipelagic sealanes passage of vessels through itswaters.28

Archipelagic sealanes passage is a more liberal passageregime than innocent passage, but must be used only for thepurpose of continuous, expeditious, and uninterrupted passagethrough the archipelago.29 Doing anything more may subjectthe passing vessel to the archipelagic State’s sovereignty andjurisdiction.

However, it must be emphasized that this is an option. Untilwe declare ourselves to be an Archipelagic State and implementPart IV through necessary legislation, then the internationalcommunity is not obliged to recognize that we are such. It is forthis reason that we still need to enact baseline legislation, inorder to harmonize our national legislation with internationallaw. Oliver Wendell Holmes once said that the law is aboutpredicting the consequences of the actions of a “bad man.”30 Inthe case of the Law of the Sea, it is about the consequences ofthe actions of a “bad foreign vessel,” that is, when such a vessel(not normally bound by national law outside that of its registry)undertakes an activity that is contrary to the sovereignty orjurisdiction of a nearby coastal State. Those consequences canonly be legitimately determined in accordance with the rulesunder UNCLOS which prescribe the extent to which coastalStates can exercise their sovereignty or jurisdiction dependingon the distance of the incident from the coastal States shores.Implementation of the UNCLOS’ provisions on ArchipelagicStates will therefore allow the Philippines to maximize itssovereignty and jurisdiction over the marine areas around itsland territories, areas that would be greater than what we would

28 UNCLOS, Articles 52–53.29 UNCLOS, Article 53, paragraph 3.30 Holmes, 0. W., The Path of the Law., 10 HARVARD LAW REVIEW 457.


normally be entitled to under international law as an ordinarycoastal State.

III. COMMON MISCONCEPTIONSABOUT THE UNITED NATIONS CONVENTION

ON THE LAW OF THE SEA

Implementation of the UNCLOS, however, has also been subjectto massive confusion and misinformation, as indicated by thepublic debate over the various bills and options pending inCongress. A number of mistakes and misconceptions about thelegal effects of the UNCLOS implementation have beenprominently raised in the media, arising from the lack ofadequate knowledge and understanding of UNCLOS, itsbackground, and the nature of international law in general. Oneof them is with respect to the 2009 deadline, already mentionedabove.

The most serious misconception in the popular debate isthat the enactment of archipelagic baselines, and particularlythe enclosure of the Kalayaan Island Group within a singlebaseline system, is needed to “strengthen” sovereignty overthem. This is entirely false. First, there is no need to enclose allthe islands of an archipelago within a single set of archipelagicbaselines in order for it to be considered part of the ArchipelagicState. Article 47 of UNCLOS expressly defines an archipelagicState to be “a State constituted wholly by one or morearchipelagos and may include other islands.” The legal principleinvolved here is that of contiguity, and it is clear in internationallaw that territorial contiguity is not essential where the land isseparated by the sea. Many non-archipelagic States like theUnited States, New Zealand, Australia, United Kingdom,Malaysia, Papua New Guinea, and others have separateterritories that are not connected by a single set of baselines.In fact, in the case of the United States and Malaysia, betweenparts of their territories, there are territories of other States(Canada and Indonesia, respectively). Even our own national


legislation adopts this exception to the principle, by providingin the Local Government Code that the territories of localgovernments comprised of two or more islands need not becontiguous.31

Second, the drawing of baselines under UNCLOS does notoperate like the process for securing a Torrens Title. UNCLOScannot be used to claim islands or any other land territories,because the fundamental principle underlying the maritimezones is that sovereignty and jurisdiction over the adjacent seasflow from the sovereignty over the land, not the other wayaround. “Water flows downstream,” as an old axiom goes, andtherefore the drawing of baselines follows from the exerciseof sovereignty; conversely, sovereignty does not arise merelyfrom the act of drawing of baselines.

Third, there is no need to “strengthen” sovereignty overthe Kalayaan Island Group because we have already beenexercising complete sovereignty over the area since the 1970s.It has been continuously occupied and administered as amunicipality of Palawan, municipal elections are held annuallyfor the area, and its surrounding waters have been subject toPhilippine control of activities such as fishing, scientific research,and petroleum exploration. To state now that we still need to“strengthen” sovereignty may in fact be seen as acounterproductive admission against interest that thePhilippines believes that its sovereignty is still imperfect andinchoate.

In connection with this, there are also those who assertthat the conduct of the seismic surveys under the Joint MarineSeismic Undertaking (JMSU) somehow derogates or diminishesthe Philippines’ sovereignty over the Kalayaan Island Group.Since the issue is sub judice, I cannot comment upon this ingreat detail. But without dealing with the JMSU in particular,the question is whether seismic surveys, which is a scientific31 See Sections 7, 386, 442, 450, and 461, Republic Act No. 7160, The

Local Government Code of 1991, October 10, 1991.


method of determining the nature and character of the seabedbeneath, per se, diminish or affect Philippine sovereignty. Forthat matter, it could be considered whether scientific surveysconducted by foreign States affect the status of sovereignty.Figure 5 is a collection of the tracklines of not only seismic, butalso hydrographic, gravimetric, thermographic, chemical, andother scientific surveys conducted by foreign institutes andvessels within and around the Philippines. All the data fromthese surveys are freely accessible from the internet.32 Aside

32 See National Geophysical Data Center (NGDC), “MarineGeophysical Trackline Data,” <http://www.ngdc.noaa.gov/mgg/geodas/trackline.html> (last accessed June 25, 2008).

Figure 5. International seismic and other scientific surveys in andaround the Philippines


from these, one must also consider the large number of seismicsurveys conducted by foreign oil exploration companiescontracted by the Department of Energy for decades, and whoserecords are kept confidentially by the DOE’s Energy Data Center.These scientific surveys and petroleum exploration activitieshave been going on ever since the Philippines came underAmerican rule. One could then ask whether the Philippines issubstantially and concretely any less sovereign now, with therevelation of knowledge that these have been taking place allthis time, than it was before. It is not merely the nature of anactivity which must be considered when determining the effecton sovereignty, but also, and perhaps more importantly, itssubsequent use.

There are also those who oppose the implementation ofUNCLOS and establishment of archipelagic baselines for thereason that to do so would “open” Philippine waters to foreignvessels, due to the commitment to allow innocent passage andarchipelagic sealanes passage.33 But this fear does notacknowledge the reality that historically, the Philippines hasalways allowed foreign vessels to pass through its waters. Evenwhen it asserted the archipelagic principle back in 1956, thePhilippines expressly provided that foreign vessels wereallowed to exercise innocent passage throughout its waters,without clearly distinguishing the respective extents of theinternal and territorial waters.34 International publicationstouching on the sea routes through the seas around the

33 See for example, M. Magallona, “The UNCLOS and Its Implicationson the Territorial Sovereignty of the Philippines” in World Bulletin,Vol. 11, Nos. 1–2 (January-April 1995) UP Institute of InternationalLegal Studies, UP Diliman, Quezon City (I995), pp. 50–76; M.Magallona, The Dismantling of the Philippine State and Its Impacton Civil Society,” UP Institute of International Law Studies, 1996;and M. Defensor-Santiago, Sponsorship Speech for a CongressionalCommission on National Territory, Philippine Senate, May 21, 2008.

34 See Note Verbale, January 20, 1956, supra Note 22.


Philippines have always shown well-known routes passingthrough its islands.35

That these navigational practices continue today can beproven. In 2004, the US National Center for Ecological Analysisand Synthesis determined prevailing global ship routes as ameans to determining the ecological impact of world shipping.36

To make this determination, it used position data from about3,300 volunteer commercial vessels (about 11 percent of theglobal merchant fleet) of various types which contributed suchdata as part of sea surface information used for internationalweather monitoring and forecasting programs. These werecomprised of ordinary cargo, passenger, and sometimes militaryvessels of different nationalities navigating through the seasas they normally do, and thus may be considered as a statisticalsample of the ship routes used by the world fleet. The excerptfrom this data shows the area of Philippines in Figure 6, and thetracks of hundreds of ships passing through and around itswaters. It is an especially enlightening manifestation of thekind of vessel traffic that has been steaming through and aroundour jurisdictional waters for a long time.

35 See for example, J. Morgan, and M. Valencia, Eds., Atlas for MarinePolicy in Southeast Asian Seas. Berkeley: University of CaliforniaPress, 1984. Also L. T. Ghee, and M. Valencia, Eds., Conflict overNatural Resources in South-East Asia and the Pacific. Oxford, NewYork, and Toronto: Oxford University Press, 1990.

36 National Center for Ecological Analysis and Synthesis (NCEAS), “Data:Impacts,” <http://www.nceas.ucsb.edu/GlobalMarine/impacts> (lastaccessed June 25, 2008).


Figure 6. International vessel tracks/routes in and around thePhilippines recorded in 2004

IV. ARCHIPELAGIC BASELINESAND THE SOUTHEAST ASIAN REGION

The greatest challenge to Philippine implementation ofUNCLOS through the enactment of archipelagic baselines,however, is not legal, but geopolitical. Depending on howconservatively or liberally we apply the rules in UNCLOS, wemay project the maximum extent of our maritime zones muchfarther into the South China Sea than ever before or maintainthe status quo (See Figure 7). Since our neighbors, particularlyVietnam, China, and Malaysia, also have their interests andprospective maritime zones within that area, they can beexpected to act in such a way as to preserve their own interests.


Figure 7. Philippine archipelagic baseline optionspending in Congress


37 Declaration on the Conduct of Parties in the South China Sea. PhnomPenh. November 4, 2002. Available from ASEAN website <http://www.aseansec.org/l3163.htm> (last accessed June 25, 2008).

The fact that there are competing claims to territory,sovereignty, and jurisdiction over both island and marine areaswithin the South China Sea makes the problem even morecomplicated. Thus, it is not only a matter of being able to find amutually acceptable median boundary between two States,which is difficult enough as it is, but resolving a wide range ofcomplex issues, claims, and counterclaims between at leastfive States. In order to ensure that our interests are protected,acting within this context requires a very careful and well-thought strategy not only in law but in foreign policy and theconduct of our relations with neighboring States.

The popular clamor and support for the drawing ofPhilippine archipelagic baselines that enclose the mainarchipelago and the entire Kalayaan Island Group andScarborough Shoal, indicated in Representative Cuenco’s HouseBill No. 3216 and Senator Pimentel’s Senate Bill No. 2144, is amaximalist position that on the surface encloses the greatestgeographic area. But it is based on a number of erroneousassumptions, such as that the action must be taken before adeadline and that it “strengthens” Philippine sovereignty.Neither is correct. The option furthermore is no longer feasible,because it requires the building of new structures in theKalayaan Island Group which is not permitted under the 2002ASEAN-China Declaration of Conduct,37 an agreement thePhilippines itself spearheaded to prevent further complicatingthe South China Sea disputes through the addition of artificialstructures in the area. By pushing our potential maritime spacesfurther into the South China Sea than ever before, and enclosingislands that are claimed by other States, the Philippines alsoensures that the new archipelagic baselines system will besubjected to diplomatic protests by the other States, whichdirectly undermines any legal effect the baselines may have on


foreign States. If the new Philippine baselines are protested,then the maritime zones they generate are again left in limboand uncertainty, a situation no better than what we had before.Moreover, in the long term, politically and practically, thePhilippines will find it extremely difficult to negotiate anypeaceful settlement of the territorial issues since anycompromise fixes our negotiating options to only one singleposition. Legislating the maximalist position will onlycomplicate and prolong the territorial issues in the South ChinaSea, and not contribute toward their settlement.

The executive position which encloses only the mainarchipelago and leaves the Kalayaan lsland Group andScarborough Shoal as separate islands is indeed a minimalistposition, and minimizes changes to the status quo. But, it alsohas a better chance in international law. It avoids protests thatwould jeopardize the integrity of the baselines around the restof the Philippine archipelago. It limits the effect of such proteststo the islands themselves and thus permits the Philippines toexercise its sovereignty and jurisdiction over other areasunhindered. It also helps to rationalize and harmonize theconfiguration of the Philippine maritime zones withinternational law in a manner acceptable to the internationalcommunity. Maintaining an island regime around the Kalayaanlsland Group also provides more flexibility in the long term tothe Philippines in seeking the peaceful solution of territorialissues because it can then develop more options forcompromise without having to involve the status of the rest ofthe Philippine archipelago. And all these can be validly donewithout affecting the current status of Philippine sovereigntyover the Kalayaan Island Group.

V. CONCLUSION

From an international law perspective, the key issue for thecountry is not how much maritime area will be enclosed, butwhich action is more likely to be considered valid. Maritime


sovereignty and jurisdiction are not created by simply drawingon a map; they must also be recognized and accepted by otherStates, in addition to conforming to the rules and principlesthat have already been agreed upon in UNCLOS. If not, thenthey will be continually challenged and will never be settled.We shall never get any support for them, and much of what wethink we can do may be nothing more than mere illusions. If weare to act in ways that affect other members of the internationalcommunity, or if we want them to support our actions andstrengthen our hand in the face of stronger competitors, wesimply cannot continue merely asserting things without findingacceptance from the rest of the world.

But this is more than a question of international law. Whatmakes it most challenging for us is the fact that our use andimplementation of UNCLOS have unavoidable impacts on themaritime zones of all our neighboring countries, and havedefinite implications on the navigational interests of the restof the world.

Enacting a new baselines law, whatever the finalconfiguration, will shape the geopolitics of the Southeast Asianregion for years to come, but not necessarily change the statusof Philippine sovereignty over the KIG or Scarborough Shoal.Whether a new law perpetuates or aggravates the regionalissues to spur further contestation, or opens the door forcooperation and settlement, is the international responsibilitythat attaches to its enactment. We can choose to be a leader ora troublemaker; what happens in the region has impacts on therest of the world. This is the broader national interest involved,and the true gravity of the act of establishing our baselines. Wedecide not only the future of our country, but that of SoutheastAsia as well.

391REACTIONS ON WHY THERE IS AN IMMEDIATE NEED TO ENACT A BILL

AMENDING REPUBLIC ACT NO. 3046, AS AMENDED,TO CONFORM TO THE CONVENTION ON THE LAW OF THE SEA

∗Delivered at the Third Distinguished Lecture, Series of 2008, held onJune 27, 2008, at the Far Eastern University, Manila, published inthe 11 PHILJA JUDICIAL JOURNAL 31, 132–143 (2008).

Reactions on Why There is an ImmediateReactions on Why There is an ImmediateReactions on Why There is an ImmediateReactions on Why There is an ImmediateReactions on Why There is an ImmediateNeed to Enact a Bill AmendingNeed to Enact a Bill AmendingNeed to Enact a Bill AmendingNeed to Enact a Bill AmendingNeed to Enact a Bill Amending

Republic Act No. 3046, as Amended,Republic Act No. 3046, as Amended,Republic Act No. 3046, as Amended,Republic Act No. 3046, as Amended,Republic Act No. 3046, as Amended,to Conform to the Conventionto Conform to the Conventionto Conform to the Conventionto Conform to the Conventionto Conform to the Convention

on the Law of the Seaon the Law of the Seaon the Law of the Seaon the Law of the Seaon the Law of the Sea∗∗∗∗∗

Atty. Estelito P. Mendoza

Former Minister of Justice andSolicitor General Estelito P.Mendoza obtained his Preparatoryand Legal Education and Bachelorof Laws degree from the Universityof the Philippines, and his Masterof Laws degree from HarvardUniversity in 1954.

Admitted to the Philippine Barin 1953, he was in private lawpractice until 1971 when he wasappointed as Undersecretary ofJustice. He continued to serve as:Solicitor General (1972–1986);Minister of Justice/Attorney(1984–1986); Member, NationalAssembly (1978–1980; 1984–1985); and Provincial Governor ofPampanga (1980–1986). He alsoserved as Chairman of the Sixth(legal) Committee, 31st Session(1976) of the UN General Assembly;Chairman of the Special Committeeon the Charter of the UnitedNations and the Strengthening ofthe Role of the Organization(1980).

He was also a ProfessorialLecturer in Law at the Universityof the Philippines (1954–1973) anda member of organizations suchas: Phi Kappa Phi Honor Society,Phi Gamma Mu; Upsilon SigmaPhi, Rotary Club of Manila,Philippine Bar Association,Integrated Bar of the Philippines,Manila Polo Club, PhilippineSociety of International Law,American Society of InternationalLaw, and the Harvard Club of thePhilippines.


TI. INTRODUCTION

here should be no doubt about the Philippine territory.1

It is our good fortune that the Philippines consists ofislands in the middle of the sea. We have no land with

borders adjacent to other countries; consequently, no borderconflicts.2

While the territory of a state consists generally of land,including its internal waters, such as rivers and lakes; in ourcase, under the archipelagic principle which we have adopted,3

and now explicitly recognized in Part IV of the Law of the SeaConvention (LOSC), the islands comprising the Philippinearchipelago, together with the water between the islands, arean integrated whole which, with the Kalayaan Island Group,constitute our territory.

In the Anglo-Norwegian Fisheries case, decided in 1951 bythe International Court of Justice (ICJ), recognition was givento “coastal” archipelagos which allowed the state to drawstraight baselines around the outermost points of a coastalarchipelago and “tie” it to the mainland coast. This is whatNorway had done. Although whether island archipelagos shouldenjoy a special regime was much debated upon in the 1980Hague Conference and the 1958 Conference on the Law of theSea, it was not until the 1982 Convention on the Law of the Sea4

1 See Article 1, 1935, 1973 and 1987 Constitutions.

2 Landlocked countries, of which there are 42 of the approximately190 states, particularly have the problem.

3 Article 1, 1973 and 1987 Constitutions; Republic Act No. 3046.4 The Law of the Sea Convention came into force on November

16,1994. Its text was adopted on April 30, 1982, by 130 votes tofour, with 17 abstentions. As of June 2008, 155 states ratified andacceded to the Convention.



was there explicit recognition, in international law, of “islandarchipelagos,”5 such as ours. As early as 1961, however, we hadformally adopted the principle by enacting Republic Act No.3046 entitled “An Act Defining the Baselines of the TerritorialSea of the Philippines.”

But we do have common borders in regard maritime areasover which we are sovereign or have rights or jurisdiction. Whenthe distance over water which separates us from another stateis less than 400 nautical miles from our respective baselines,we have a common border as to our, and the other state’s,exclusive economic zone. And, when the area within ourexclusive economic zone does not overlap with the exclusiveeconomic zone of another state, we would have a borderseparating our exclusive economic zone from the internationalseabed area, referred to in the LOSC, as the area “beyond thelimits of national jurisdiction.”6

While we would not have, therefore, any border orboundary conflicts on land, we may have maritime boundaryconflicts as to overlapping maritime zones with neighboringstates, like Malaysia and Indonesia, and possibly, with theinternational seabed area.

Allow me to comment on two points:

a. Whether there is a need to enact legislation amendingRA No. 3046, as amended by RA No. 5446, so as to makethe baselines of the Philippine archipelago conform tothe Law of the Sea Convention, particularly its Article47; and

b. Whether the baselines should now include as a singlearchipelago, the Philippine archipelago enclosed by the

5 Part IV.6 Article 1(i).


baselines in RA No. 3046, as amended, and the KalayaanGroup of Islands.7

I proceed from three premises, as follows:

a. On matters of sovereignty or jurisdiction over areasbeyond the land territory of a State, such as theterritorial sea and exclusive economic zone, the best,and perhaps the only assurance, that a state’ssovereignty and jurisdiction over such areas will berespected by other states, is that its sovereignty andjurisdiction are in accord with international law. Onlystates with the power to enforce their sovereignty andjurisdiction over such areas, such as the United States,can assert claims not necessarily in accord withinternational law and enforce them;

b. The value of rules and principles of international lawwhich vest rights over the sea and its resources adjacentto a territory to the exclusion of other states, principallythe territorial sea, and now, the exclusive economiczone, lies in their recognition and acceptance by theinternational community; and

c. We maintain our adherence to the 1982 Convention onthe Law of the Sea.

II. THE NEED FOR AMENDING

REPUBLIC ACT NO. 3046 IS IMMEDIATE

While Article 46 of the LOSC defines an “archipelagic state” andan “archipelago,” the status of an “archipelago” with the rightsarising therefrom under Article 49, do not arise ipso facto fromsuch fact.

7 Declaring Certain Areas Part of the Philippine Territory andProviding for Their Government and Administration, PresidentialDecree No. 1596, enacted on June 11, 1978.



Article 47 provides:

ART. 47. Archipelagic Baselines.

1. An archipelagic State may draw straight archipelagicbaselines (emphasis ours) joining the outermost points ofthe outermost islands and drying reefs of the archipelagoprovided that within such baselines are included the mainislands and an area in which the ratio of the area of thewater to the area of the land, including atolls, is between1 to 1 and 9 to 1.

2. The length of such baselines shall not exceed 100 nauticalmiles, except that up to 3 percent of the total number ofbaselines enclosing any archipelago may exceed thatlength, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to anyappreciable extent from the general configuration of thearchipelago.

x x x x

While Article 49 provides:

ART. 49. Legal status of archipelagic waters, of the airspace over archipelagic waters and of their bed and subsoil.

1. The sovereignty of an archipelagic State extends tothe waters enclosed by the archipelagic baselinesdrawn in accordance with Article 47, described asarchipelagic waters, regardless of their depth ordistance from the coast.

2. This sovereignty extends to the air space over thearchipelagic waters, as well as to their bed andsubsoil, and the resources contained therein.

3. This sovereignty is exercised subject to this Part.

4. The regime of archipelagic sea lanes passageestablished in this Part shall not in other respectsaffect the status of the archipelagic waters, includingthe sea lanes, or the exercise by the archipelagic Stateof its sovereignty over such waters and their air space,bed, and subsoil and the resources contained therein.


Under the above provisions, the archipelagic state has theoption of vesting in its “archipelago” the status of an“archipelago” under Part IV of the LOSC. That option is exercisedby drawing the “straight baselines” provided in Article 47. Ifthe archipelagic state does not draw the baselines provided inArticle 47, then the islands comprising the archipelago will beregarded merely as “islands” under Article 121. The watersbetween the islands will not be regarded as “archipelagicwaters” subject to sovereign rights of the archipelagic stateunder Article 49, but depending on the distance between theislands, will be regarded as territorial sea or high seas. Shouldthe islands be separated from each other by more than 24nautical miles (each island generating a territorial sea of 12nautical miles), other states would enjoy in the seas beyondthe territorial sea of each island the “freedom of the high seas”provided in Article 87.

Article 48 of the LOSC provides as follows:

ART. 48. Measurement of the breadth of the territorial sea, thecontiguous zone, the exclusive economic zone and thecontinental shelf.

The breadth of the territorial sea, the contiguous zone, theexclusive economic zone and the continental shelf shall bemeasured from archipelagic baselines drawn in accordancewith Article 47.

To establish the limits of our territorial sea, the contiguouszone, the exclusive economic zone and the continental shelf,we need to have baselines drawn in accordance with Article 47.Without such baselines, the status of the Philippine archipelagoas an “archipelago” under Article 46(b) of the LOSC and theexercise of resulting sovereign rights under Article 49 will be inquestion. Moreover, the limits of our territorial sea, contiguouszone, and exclusive economic zone may not be clearly defined.The need, therefore, to amend RA No. 3046, as amended, toconform to the requirements of the LOSC is evident andimmediate. Unless we do so, we will not be assured of



recognition by the international community of the status of thePhilippine “archipelago” as an “archipelago,” the enjoyment ofthe rights incident thereto provided in Article 49, and thedefinition of the limits of our territorial sea, contiguous zoneand exclusive economic zone.

III. WHETHER THE BASELINES SHOULD NOW INCLUDE AS ASINGLE ARCHIPELAGO, OR THE PHILIPPINE ARCHIPELAGO

ENCLOSED BY THE BASELINES IN REPUBLIC ACT NO. 3046,AS AMENDED, AND THE KALAYAAN GROUP OF ISLANDS

The Law of the Sea Convention recognizes “archipelagic states”8

which means a “state constituted wholly by one or morearchipelagos and may include other islands.”9 In order that wemay have the status of an “archipelagic state,” we may simplyamend RA No. 3046 to conform to Article 47 of the LOSC, so thatthe “archipelago” enclosed by the baselines under RA No. 3046will have the status of an “archipelago” and the Philippines asan “archipelagic state” under the LOSC.

Two ways of dealing with the problem are reflected in billsnow pending enactment by the House of Representatives andthe Senate, as follows:

(a) To maintain the “archipelago” enclosed by the baselinesin RA No. 3046 but amending the baselines to conformto Article 47 and to consider the “Kalayaan Group ofIslands” as “islands” under Article 121 of the Law of theSea Convention, or

(b) To consider both the “archipelago” enclosed by thebaselines in RA No. 3046, as amended, and the KalayaanGroup of Islands, as a single archipelago by drawingstraight baselines connecting the outermost points of

8 Part IV.9 Article 46(a).


the outermost islands of both the Philippine archipelagoand the Kalayaan Group of Islands.

I support the first alternative for the following reasons:

a. Article 46(b) defines an “archipelago” as follows:

ART. 46. Use of terms.

For the purpose of this Convention:

x x x x

b. archipelago means a group of islands, includingparts of islands, interconnecting waters and othernatural features which are so closely interrelatedthat such islands, waters and other naturalfeatures form an intrinsic geographical,economic and political entity, or whichhistorically have been regarded as such.

There can be no question that the “Philippinearchipelago,” as we have always known it, and enclosedby the baselines in RA No. 3046, is an “archipelago”under the above definition. But whether that“archipelago” and the Kalayaan Group of Islands,together, constitute an “archipelago” is uncertain. Itmust be remembered that the “Kalayaan Group ofIslands” came to be part of the Philippines only uponthe enactment on June 11, 1978 of PD No. 1596. It hasnever, through the centuries of its existence, beenregarded as part of the Philippine archipelago.

b. Under Article 47, it is in fact required, that the baselines“shall not depart to any appreciable extent from thegeneral configuration of the archipelago.” This makesmore emphatic that what are inclosed by the baselinesis an “archipelago” with a configuration as such.

c. Technical studies have shown that there is no tie-pointwith low tide elevation (bare at low tide) that couldconnect the Kalayaan Group of Islands with the mainarchipelago.



10 Based on information, as best as I am able to obtain, more than 20islands are occupied by Vietnam, about 10 islands by China, 5 byMalaysia, 1 by Taiwan, and 9 by the Philippines.

d. Several, in fact a majority, of the basepoints are locatedin islands presently occupied by other countries (notthe Philippines). It is absurd, indeed ridiculous, thatbasepoints of our arhipelagic baselines would be onislands occupied by other states, albeit without ourconsent.

With the above recognition that the baselines are in accordwith Article 47 of the Law of the Sea Convention is a hugeproblem. They most certainly will be disputed by the countrieswho now occupy the majority of the islands in the KalayaanGroup. Should any part of the baselines, particularly those thatconnect the Kalayaan Group of Islands to the Philippinearchipelago, be found not in accord with Article 47, it may nullifynot only the baselines linking the Kalayaan Group of Islands tothe main archipelago but the entire baselines enclosing thePhilippines.

On the other hand, it is in our interest that we assure thatthe Philippine archipelago, as we have always known it, andenclosed by the baselines under RA No. 3046, as amended, isinvulnerable to any question. That way, we are assured that thePhilippine archipelago enclosed by the baselines under RA No.3046, as amended, will have the recognition of the internationalcommunity. To dissipate any apprehension that we haveabandoned our sovereignty over the Kalayaan Group of Islands,we may explicitly acknowledge in whatever legislation isenacted that the Kalayaan Group of Islands shall be regarded asa “regime of islands” under Article 121 of the Law of the SeaConvention.

We must face the reality that our sovereignty over theKalayaan Group of Islands is disputed by neighboring states,principally China and Vietnam. Majority of the islands composingthe Kalayaan Group of Islands are occupied by these countries.10


Vietnam occupies the biggest number of islands. We mustassure that whatever problem to which the Kalayaan Group ofIslands is presently exposed will not affect the Philippinearchipelago, as we have always known it, the principal territorycomprising the Republic of the Philippines, enclosed by thebaselines under RA No. 3046, as amended.

IV. CONCLUDING OBSERVATIONS

The subject matter of this afternoon’s lecture is “The Metesand Bounds of the Philippine Territory.” Because our country isan archipelago or consists of islands, we do not have any landborders adjoining other states. If by “territory,” therefore, “land”is contemplated, I venture to say that we hardly have any “Metesand Bounds” problem. But if by “territory” is contemplatedwhich, in my view, it should, sovereignty or jurisdiction overmaritime areas adjoining the land territory, we do have aproblem of “Metes and Bounds.”11 The problem regrettably isprincipally attributable to our failure to amend RA No. 3046, asamended by RA No. 5046, so that the baselines therein definedwill conform to Article 47 of the LOSC. This requires technicalexpertise available from the National Mapping and Resource

11 The DFA has advised that our neighboring countries, particularlyVietnam, Japan, China, Taiwan, Malaysia and Indonesia have bylegislation drawn their baselines and that our exclusive economiczone overlaps with theirs. The archipelagic baselines would becritical in the negotiation and settlement of these overlappingmaritime boundaries. The baselines constitute the reckoning pointby which the outer limits of the Philippine maritime jurisdictionsare initially determined. It is only upon the initial determinationof the outer limits of the Philippine maritime jurisdictions that wewould be able to first, determine the parameters of our negotiatingposition (e.g., maximum and minimum position); and second, toactually proceed with the negotiation and conclusion of maritimeboundary delimitation agreements with the neighboring countries.As a matter of fact, the Republic of the Philippines-IndonesiaMaritime Delimitation negotiations had to be suspended lastDecember because the Philippines has yet to enact a baselines lawin accordance with Article 47 of UNCLOS 111.



Information Authority (NAMRIA). Indeed, NAMRIA has alreadyidentified and proposed the amendments to assure compliancewith Article 47 of the LOSC which are already reflected in billspending in Congress. No valid reasons exist for ourprocrastination of many years.