EN BANC

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

THE PROVNCE O! NORTH COTABATO, "#$% REPRE&ENTE" B% GOVERNOR 'E&#& &AC"A$AN AN"(OR
VCE)GOVERNOR E**AN#E$ P+,O$, !OR AN" N H& O-N BEHA$!, PETTONER&, V&. THE
GOVERN*ENT O! THE REP#B$C O! THE PH$PPNE& PEACE PANE$ ON ANCE&TRA$ "O*AN .GRP/,
REPRE&ENTE" B% &EC. RO"O$!O GARCA, ATT%. $EAH AR*A*ENTO, ATT%. &E"!RE% CAN"E$ARA,
*AR0 R%AN &#$$VAN AN"(OR GEN. HER*OGENE& E&PERON, 'R., THE $ATTER N H& CAPACT% A& THE
PRE&ENT AN" "#$%)APPONTE" PRE&"ENTA$ A"V&ER ON THE PEACE PROCE&& .OPAPP/ OR THE &O)
CA$$E" O!!CE O! THE PRE&"ENTA$ A"V&ER ON THE PEACE PROCE&&,RE&PON"ENT&.
G.R. NO. 183152
CT% GOVERN*ENT O! 2A*BOANGA, A& REPRE&ENTE" B% HON. CE$&O $. $OBREGAT, CT% *A%OR O!
2A*BOANGA, AN" N H& PER&ONA$ CAPACT% A& RE&"ENT O! THE CT% O! 2A*BOANGA, REP. *A.
&ABE$$E G. C$*ACO, "&TRCT 1, AN" REP. ERCO BA&$O A. !ABAN, "&TRCT 2, CT% O!
2A*BOANGA, PETTONER&, V&. THE GOVERN*ENT O! THE REP#B$C O! THE PH$PPNE& PEACE
NEGOTATNG PANE$ .GRP/, A& REPRE&ENTE" B% RO"O$!O C. GARCA, $EAH AR*A*ENTO, &E"!RE%
CAN"E$ARA, *AR0 R%AN &#$$VAN AN" HER*OGENE& E&PERON, N H& CAPACT% A& THE
PRE&"ENTA$ A"V&ER ON PEACE PROCE&&, RE&PON"ENT&.
G.R. NO. 183893
THE CT% O! $GAN, "#$% REPRE&ENTE" B% CT% *A%OR $A-RENCE $$#CH CR#2, PETTONER, V&.
THE GOVERN*ENT O! THE REP#B$C O! THE PH$PPNE& PEACE PANE$ ON ANCE&TRA$ "O*AN .GRP/,
REPRE&ENTE" B% &EC. RO"O$!O GARCA, ATT%. $EAH AR*A*ENTO, ATT%. &E"!RE% CAN"E$ARA,
*AR0 R%AN &#$$VAN3 GEN. HER*OGENE& E&PERON, 'R., N H& CAPACT% A& THE PRE&ENT AN" "#$%
APPONTE" PRE&"ENTA$ A"V&ER ON THE PEACE PROCE&&3 AN"(OR &EC. E"#AR"O ER*TA, N H&
CAPACT% A& E4EC#TVE &ECRETAR%. RE&PON"ENT&.
G.R. NO. 183951
THE PROVNCA$ GOVERN*ENT O! 2A*BOANGA "E$ NORTE, A& REPRE&ENTE" B% HON. RO$AN"O E.
%EBE&, N H& CAPACT% A& PROVNCA$ GOVERNOR, HON. !RANC& H. O$V&, N H& CAPACT% A& VCE)
GOVERNOR AN" PRE&"NG O!!CER O! THE &ANGG#NANG PAN$A$A-GAN, HON. CEC$A 'A$O&'O&
CARREON, CONGRE&&-O*AN, 1&T CONGRE&&ONA$ "&TRCT, HON. CE&AR G. 'A$O&'O&,
CONGRE&&*AN, 3R" CONGRE&&ONA$ "&TRCT, AN" *E*BER& O! THE &ANGG#NANG
PAN$A$A-GAN O! THE PROVNCE O! 2A*BOANGA "E$ NORTE, NA*E$%, HON. &ETH !RE"ERC0 P.
'A$O&'O&, HON. !ERNAN"O R. CABGON, 'R., HON. #$"ARCO *. *E'ORA"A , HON. E"ONAR *.
2A*ORA&, HON. E"GAR '. BAG#O, HON. CE"RC $. A"RATCO, HON. !E$4BERTO C. BO$AN"O, HON.
'O&EPH BREN"O C. A'ERO, HON. NORB"ER B. E""NG, HON. ANECTO &. "AR#N"A%, HON. ANGE$CA
'. CARREON AN" HON. $#2V*N"A E. TORRNO, PETTONER&, V&. THE GOVERN*ENT O! THE REP#B$C
O! THE PH$PPNE& PEACE NEGOTATNG PANE$ [GRP], A& REPRE&ENTE" B% HON. RO"O$!O C.
GARCA AN" HON. HER*OGENE& E&PERON, N H& CAPACT% A& THE PRE&"ENTA$ A"V&ER O! PEACE
PROCE&&, RE&PON"ENT&.
G.R. NO. 183952
ERNE&TO *. *ACE"A, 'E'O*AR C. BNA%, AN" A6#$NO $. P*ENTE$ , PETTONER&, V&. THE
GOVERN*ENT O! THE REP#B$C O! THE PH$PPNE& PEACE NEGOTATNG PANE$, REPRE&ENTE" B%
T& CHAR*AN RO"O$!O C. GARCA, AN" THE *ORO &$A*C $BERATON !RONT PEACE NEGOTATNG
1
PANE$, REPRE&ENTE" B% T& CHAR*AN *OHAGHER 6BA$, RE&PON"ENT&.
!RAN0$N *. "R$ON AN" A"E$ ABBA& TA*ANO, PETTONER&)N)NTERVENTON.
&EN. *AN#E$ A. RO4A&, PETTONER&)N)NTERVENTON.
*#NCPA$T% O! $NA*ON "#$% REPRE&ENTE" B% T& *#NCPA$ *A%OR NOE$ N. "EANO,
PETTONER&)N)NTERVENTON,
THE CT% O! &ABE$A, BA&$AN PROVNCE, REPRE&ENTE" B% *A%OR CHERR%$%N P. &ANTO&)A0BAR,
PETTONER&)N)NTERVENTON.
THE PROVNCE O! &#$TAN 0#"ARAT, REP. B% HON. &#HARTO T. *ANG#"A"AT#, N H& CAPACT% A&
PROVNCA$ GOVERNOR AN" A RE&"ENT O! THE PROVNCE O! &#$TAN 0#"ARAT, PETTONER)N)
NTERVENTON.
R#% E$A& $OPE2, !OR AN" N H& O-N BEHA$! AN" ON BEHA$! O! N"GENO#& PEOP$E& N
*N"ANAO NOT BE$ONGNG TO THE *$!, PETTONER)N)NTERVENTON.
CAR$O B. GO*E2, GERAR"O &. "$G, NE&ARO G. A-AT, 'O&E$TO C. A$&#AG AN" RCHA$E4 G.
'AG*&, A& CT2EN& AN" RE&"ENT& O! PA$A-AN, PETTONER&)N)NTERVENTON.
*ARNO R"AO AN" 0&N B#4AN, PETTONER&)N)NTERVENTON.
*#&$* $EGA$ A&&&TANCE !O#N"ATON, NC .*#&$A!/, RE&PON"ENT)N)NTERVENTON.
*#&$* *#$T)&ECTORA$ *OVE*ENT !OR PEACE 7 "EVE$OP*ENT .***P"/, RE&PON"ENT)N)
NTERVENTON.
" E C & O N
CARPO *ORA$E&, '.8
Subject of these consolidated cases is the e9te:t o; t<e =o>er? of the President in pursuing the peace process .
While the facts surrounding this controversy center on the armed conflict in Mindanao between the government and
the Moro Islamic Liberation Front MILF!" the legal issue involved has a bearing on all areas in the country where there
has been a long#standing armed conflict. $et again" the %ourt is tas&ed to perform a delicate balancing act. It must
uncompromisingly delineate the bounds within which the President may lawfully e'ercise her discretion" but it must do
so in strict adherence to the %onstitution" lest its ruling unduly restricts the freedom of action vested by that same
%onstitution in the %hief ('ecutive precisely to enable her to pursue the peace process effectively.
. !ACT#A$ ANTECE"ENT& O! THE PETTON&
)n *ugust +" ,--." the /overnment of the 0epublic of the Philippines /0P! and the MILF" through the %hairpersons
of their respective peace negotiating panels" were scheduled to sign a Memorandum of *greement on the *ncestral
1omain M)*#*1! *spect of the /0P#MILF 2ripoli *greement on Peace of ,--3 in 4uala Lumpur" Malaysia.
2he MILF is a rebel group which was established in March 35.6 when" under the leadership of the late Salamat
7ashim" it splintered from the Moro 8ational Liberation Front M8LF! then headed by 8ur Misuari" on the ground"
among others" of what Salamat perceived to be the manipulation of the M8LF away from an Islamic basis towards
Mar'ist#Maoist orientations.
93:
2he signing of the M)*#*1 between the /0P and the MILF was not to materiali;e" however" for upon motion of
2
petitioners" specifically those who filed their cases before the scheduled signing of the M)*#*1" this %ourt issued a
2emporary 0estraining )rder enjoining the /0P from signing the same.
2he M)*#*1 was preceded by a long process of negotiation and the concluding of several prior agreements between
the two parties beginning in 355<" when the /0P#MILF peace negotiations began. )n =uly 3." 355>" the /0P and
MILF Peace Panels signed the *greement on /eneral %essation of 7ostilities. 2he following year" they signed the
/eneral Framewor& of *greement of Intent on *ugust ,>" 355..
2he Solicitor /eneral" who represents respondents" summari;es the M)*#*1 by stating that the same contained"
among others" the commitment of the parties to pursue peace negotiations" protect and respect human rights"
negotiate with sincerity in the resolution and pacific settlement of the conflict" and refrain from the use of threat or force
to attain undue advantage while the peace negotiations on the substantive agenda are on#going.
9,:
(arly on" however" it was evident that there was not going to be any smooth sailing in the /0P#MILF peace process.
2owards the end of 3555 up to early ,---" the MILF attac&ed a number of municipalities in %entral Mindanao and" in
March ,---" it too& control of the town hall of 4auswagan" Lanao del 8orte.
9?:
In response" then President =oseph
(strada declared and carried out an @all#out#war@ against the MILF.
When President /loria Macapagal#*rroyo assumed office" the military offensive against the MILF was suspended and
the government sought a resumption of the peace tal&s. 2he MILF" according to a leading MILF member" initially
responded with deep reservation" but when President *rroyo as&ed the /overnment of Malaysia through Prime
Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table" the MILF convened its
%entral %ommittee to seriously discuss the matter and" eventually" decided to meet with the /0P.
96:
2he parties met in 4uala Lumpur on March ,6" ,--3" with the tal&s being facilitated by the Malaysian government" the
parties signing on the same date the *greement on the /eneral Framewor& for the 0esumption of Peace 2al&s
Aetween the /0P and the MILF. 2he MILF thereafter suspended all its military actions.
9+:
Formal peace tal&s between the parties were held in 2ripoli" Libya from =une ,-#,," ,--3" the outcome of which was
the /0P#MILF 2ripoli *greement on Peace 2ripoli *greement ,--3! containing the basic principles and agenda on
the following aspects of the negotiationB &ec@rAtB *spect" Re<CbADAtCtAo: *spect" and A:ce?trCD "oECA: *spect. With
regard to the *ncestral 1omain *spect" the parties in 2ripoli *greement ,--3 simply agreed @that the same be
discussed further by the Parties in their ne't meeting.@
* second round of peace tal&s was held in %yberjaya" Malaysia on *ugust +#>" ,--3 which ended with the signing of
the Implementing /uidelines on the Security *spect of the 2ripoli *greement ,--3 leading to a ceasefire status
between the parties. 2his was followed by the Implementing /uidelines on the 7umanitarian 0ehabilitation and
1evelopment *spects of the 2ripoli *greement ,--3" which was signed on May >" ,--, at Putrajaya" Malaysia.
8onetheless" there were many incidence of violence between government forces and the MILF from ,--, to ,--?.
Meanwhile" then MILF %hairman Salamat 7ashim passed away on =uly 3?" ,--? and he was replaced by *l 7aj
Murad" who was then the chief peace negotiator of the MILF. MuradCs position as chief peace negotiator was ta&en
over by Mohagher IDbal.
9<:
In ,--+" several e'ploratory tal&s were held between the parties in 4uala Lumpur" eventually leading to the crafting of
the draft M)*#*1 in its final form" which" as mentioned" was set to be signed last *ugust +" ,--..
. &tCteEe:t o; t<e =roceeFA:G?
Aefore the %ourt is what is perhaps the most contentious @consensus@ ever embodied in an instrument # the M)*#*1
which is assailed principally by the present petitions bearing doc&et numbers 3.?+53" 3.?>+," 3.?.5?" 3.?5+3 and
3.?5<,.
3
%ommonly impleaded as respondents are the /0P Peace Panel on *ncestral 1omain
9>:
and the Presidential *dviser
on the Peace Process P*PP! 7ermogenes (speron" =r.
)n =uly ,?" ,--." the Province of 8orth %otabato
9.:
and Eice#/overnor (mmanuel PiFGol filed a petition" doc&eted as
G.R. No. 183591" for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and
2emporary 0estraining )rder.
95:
Invo&ing the right to information on matters of public concern" petitioners see& to
compel respondents to disclose and furnish them the complete and official copies of the M)*#*1 including its
attachments" and to prohibit the slated signing of the M)*#*1" pending the disclosure of the contents of the M)*#*1
and the holding of a public consultation thereon. Supplementarily" petitioners pray that the M)*#*1 be declared
unconstitutional.
93-:
2his initial petition was followed by another one" doc&eted as G.R. No. 183152" also for Mandamus and Prohibition
933:

filed by the %ity of Hamboanga"
93,:
Mayor %elso Lobregat" 0ep. Ma. Isabelle %limaco and 0ep. (rico Aasilio Fabian
who li&ewise pray for similar injunctive reliefs. Petitioners herein moreover pray that the %ity of Hamboanga be
e'cluded from the Aangsamoro 7omeland andIor Aangsamoro =uridical (ntity and" in the alternative" that the M)*#*1
be declared null and void.
Ay 0esolution of *ugust 6" ,--." the %ourt issued a 2emporary 0estraining )rder commanding and directing public
respondents and their agents to cease and desist from formally signing the M)*#*1.
93?:
2he %ourt also reDuired the
Solicitor /eneral to submit to the %ourt and petitioners the official copy of the final draft of the M)*#*1"
936:
to which
she complied.
93+:
Meanwhile" the %ity of Iligan
93<:
filed a petition for Injunction andIor 1eclaratory 0elief" doc&eted as G.R. No. 183893"
praying that respondents be enjoined from signing the M)*#*1 or" if the same had already been signed" from
implementing the same" and that the M)*#*1 be declared unconstitutional. Petitioners herein additionally implead
('ecutive Secretary (duardo (rmita as respondent.
2he Province of Hamboanga del 8orte"
93>:
/overnor 0olando $ebes" Eice#/overnor Francis )lvis" 0ep. %ecilia
=alosjos#%arreon" 0ep. %esar =alosjos" and the members
93.:
of the Sangguniang Panlalawigan of Hamboanga del
8orte filed on *ugust 3+" ,--. a petition for %ertiorari" Mandamus and Prohibition"
935:
doc&eted as G.R. No. 183951.
2hey pray" inter alia" that the M)*#*1 be declared null and void and without operative effect" and that respondents be
enjoined from e'ecuting the M)*#*1.
)n *ugust 35" ,--." (rnesto Maceda" =ejomar Ainay" and *Duilino Pimentel III filed a petition for Prohibition"
9,-:

doc&eted as G.R. No. 183952" praying for a judgment prohibiting and permanently enjoining respondents from formally
signing and e'ecuting the M)*#*1 and or any other agreement derived therefrom or similar thereto" and nullifying the
M)*#*1 for being unconstitutional and illegal. Petitioners herein additionally implead as respondent the MILF Peace
8egotiating Panel represented by its %hairman Mohagher IDbal.
Earious parties moved to intervene and were granted leave of court to file their petitions#Icomments#in#intervention.
Petitioners#in#Intervention include Senator Manuel *. 0o'as" former Senate President Fran&lin 1rilon and *tty. *del
2amano" the %ity of Isabela
9,3:
and Mayor %herrylyn Santos#*&bar" the Province of Sultan 4udarat
9,,:
and /ov. Suharto
Mangudadatu" the Municipality of Linamon in Lanao del 8orte"
9,?:
0uy (lias Lope; of 1avao %ity and of the Aagobo
tribe" Sangguniang Panlungsod member Marino 0idao and businessman 4isin Au'ani" both of %otabato %ityJ and
lawyers %arlo /ome;" /erardo 1ilig" 8esario *wat" =oselito *lisuag" 0ichale' =agmis" all of Palawan %ity. 2he Muslim
Legal *ssistance Foundation" Inc. Muslaf! and the Muslim Multi#Sectoral Movement for Peace and 1evelopment
MMMP1! filed their respective %omments#in#Intervention.
Ay subseDuent 0esolutions" the %ourt ordered the consolidation of the petitions. 0espondents filed %omments on the
petitions" while some of petitioners submitted their respective 0eplies.
0espondents" by Manifestation and Motion of *ugust 35" ,--." stated that the ('ecutive 1epartment shall thoroughly
review the M)*#*1 and pursue further negotiations to address the issues hurled against it" and thus moved to dismiss
4
the cases. In the succeeding e'change of pleadings" respondentsC motion was met with vigorous opposition from
petitioners.
2he cases were heard on oral argument on *ugust 3+" ,, and ,5" ,--. that tac&led the following principal issuesB
3. Whether the petitions have become moot and academic
i! insofar as the mandamus aspect is concerned" in view of the disclosure of official copies of the final draft of
the Memorandum of *greement M)*!J and
ii! insofar as the prohibition aspect involving the Local /overnment Knits is concerned" if it is considered that
consultation has become fait accompli with the finali;ation of the draftJ
,. Whether the constitutionality and the legality of the M)* is ripe for adjudicationJ
?. Whether respondent /overnment of the 0epublic of the Philippines Peace Panel committed grave abuse of
discretion amounting to lac& or e'cess of jurisdiction when it negotiated and initiated the M)* vis#F #vis
ISSK(S 8os. 6 and +J
6. Whether there is a violation of the peopleCs right to information on ECtter? o; =@bDAc co:cer: .1981
Co:?tAt@tAo:, ArtAcDe , &ec. 1/ @:Fer C ?tCte =oDAcB o; ;@DD FA?cDo?@re o; CDD At? trC:?CctAo:? A:HoDHA:G
=@bDAc A:tere?t .1981 Co:?tAt@tAo:, ArtAcDe , &ec. 28/ including public consultation under 0epublic *ct 8o.
>3<- L)%*L /)E(08M(82 %)1( )F 3553!9J:
If it is in the affirmative" whether prohibition under 0ule <+ of the 355> 0ules of %ivil Procedure is an
appropriate remedyJ
+. Whether by signing the M)*" the /overnment of the 0epublic of the Philippines would be AI81I8/ itself
a! to create and recogni;e the Aangsamoro =uridical (ntity A=(! as a separate state" or a juridical" territorial
or political subdivision not recogni;ed by lawJ
b! to revise or amend the %onstitution and e'isting laws to conform to the M)*J
c! to concede to or recogni;e the claim of the Moro Islamic Liberation Front for ancestral domain in violation
of 0epublic *ct 8o. .?>3 27( I81I/(8)KS P()PL(S 0I/72S *%2 )F 355>!" particularly Section ?g! L
%hapter EII 1(LI8(*2I)8" 0(%)/8I2I)8 )F *8%(S20*L 1)M*I8S!9J:
If in the affirmative" whether the ('ecutive Aranch has the authority to so bind the /overnment of the
0epublic of the PhilippinesJ
<. Whether the inclusionIe'clusion of the Province of 8orth %otabato" %ities of Hamboanga" Iligan and Isabela"
and the Municipality of Linamon" Lanao del 8orte inIfrom the areas covered by the projected Aangsamoro
7omeland is a justiciable DuestionJ and
>. Whether desistance from signing the M)* derogates any prior valid commitments of the /overnment of the
0epublic of the Philippines.
9,6:
2he %ourt" thereafter" ordered the parties to submit their respective Memoranda. Most of the parties submitted their
memoranda on time.
. OHerHAe> o; t<e *OA)A"
*s a necessary bac&drop to the consideration of the objections raised in the subject five petitions and si' petitions#in#
intervention against the M)*#*1" as well as the two comments#in#intervention in favor of the M)*#*1" the %ourt ta&es
an overview of the M)*.
2he M)*#*1 identifies the Parties to it as the /0P and the MILF.
5
Knder the heading @2erms of 0eference@ 2)0!" the M)*#*1 includes not only four earlier agreements between the
/0P and MILF" but also two agreements between the /0P and the M8LFB the 35>< 2ripoli *greement" and the Final
Peace *greement on the Implementation of the 35>< 2ripoli *greement" signed on September ," 355< during the
administration of President Fidel 0amos.
2he M)*#*1 also identifies as 2)0 two local statutes # the organic act for the *utonomous 0egion in Muslim
Mindanao *0MM!
9,+:
and the Indigenous Peoples 0ights *ct IP0*!"
9,<:
and several international law instruments # the
IL) %onvention 8o. 3<5 %oncerning Indigenous and 2ribal Peoples in Independent %ountries in relation to the K8
1eclaration on the 0ights of the Indigenous Peoples" and the K8 %harter" among others.
2he M)*#*1 includes as a final 2)0 the generic category of @compact rights entrenchment emanating from the
regime of dar-ul-mua'hada or territory under compact! and dar-ul-sulh or territory under peace agreement! that
parta&es the nature of a treaty device.@
1uring the height of the Muslim (mpire" early Muslim jurists tended to see the world through a simple dichotomyB there
was the dar-ul-Islam the *bode of Islam! and dar-ul-harb the *bode of War!. 2he first referred to those lands where
Islamic laws held sway" while the second denoted those lands where Muslims were persecuted or where Muslim laws
were outlawed or ineffective.
9,>:
2his way of viewing the world" however" became more comple' through the centuries
as the Islamic world became part of the international community of nations.
*s Muslim States entered into treaties with their neighbors" even with distant States and inter#governmental
organi;ations" the classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. 8ew
terms were drawn up to describe novel ways of perceiving non#Muslim territories. For instance" areas li&e dar-ul-
mua'hada land of compact! and dar-ul-sulh land of treaty! referred to countries which" though under a secular regime"
maintained peaceful and cooperative relations with Muslim States" having been bound to each other by treaty or
agreement. Dar-ul-aman land of order!" on the other hand" referred to countries which" though not bound by treaty
with Muslim States" maintained freedom of religion for Muslims.
9,.:
It thus appears that the @compact rights entrenchment@ emanating from the regime of dar-ul-mua'hada and dar-ul-sulh
simply refers to all other agreements between the MILF and the Philippine government # the Philippines being the land
of compact and peace agreement # that parta&e of the nature of a treaty device" @treaty@ being broadly defined as @any
solemn agreement in writing that sets out understandings" obligations" and benefits for both parties which provides for
a framewor& that elaborates the principles declared in the 9M)*#*1:.@
9,5:
2he M)*#*1 states that the Parties @7*E( */0((1 *81 *%48)WL(1/(1 *S F)LL)WS"@ and starts with its
main body.
T<e ECA: boFB o; t<e *OA)A" A? FAHAFeF A:to ;o@r ?trC:F?, :CEeDB, Co:ce=t? C:F PrA:cA=De?, TerrAtorB,
Re?o@rce?, C:F GoHer:C:ce.
*. Co:ce=t? C:F PrA:cA=De?
2his strand begins with the statement that it is @the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as MAangsamoros.C@ It defines @BC:G?CEoro =eo=De@ as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest
or colonization" and their descendants whether mi'ed or of full blood" including their spouses.
9?-:
2hus" the concept of @Aangsamoro"@ as defined in this strand of the M)*#*1" includes not only @Moros@ as traditionally
understood even by Muslims"
9?3:
but all indigenous peoples of Mindanao and its adjacent islands. 2he M)*#*1 adds
that the freedom of choice of indigenous peoples shall be respected. What this freedom of choice consists in has not
been specifically defined.
6
2he M)*#*1 proceeds to refer to the @BC:G?CEoro <oEeDC:F"@ the ownership of which is vested e'clusively in the
Aangsamoro people by virtue of their prior rights of occupation.
9?,:
Aoth parties to the M)*#*1 ac&nowledge that
ancestral domain does :ot form part of the public domain.
9??:
2he Aangsamoro people are ac&nowledged as having the right to self#governance" which right is said to be rooted on
ancestral territoriality e'ercised originally under the su;erain authority of their sultanates and the Pat a Pangampong
ku Ranaw. 2he sultanates were described as states or @karajaankadatuan@ resembling a body politic endowed with all
the elements of a nation#state in the modern sense.
9?6:
2he M)*#*1 thus grounds the right to self#governance of the Aangsamoro people on the past su;erain authority of
the sultanates. *s gathered" the territory defined as the Aangsamoro homeland was ruled by several sultanates and"
specifically in the case of the Maranao" by the Pat a Pangampong ku Ranaw" a confederation of independent
principalities pangampong! each ruled by datus and sultans" none of whom was supreme over the others.
9?+:
2he M)*#*1 goes on to describe the Aangsamoro people as @the M!Ar?t NCtAo:C with defined territory and with a
system of government having entered into treaties of amity and commerce with foreign nations.@
2he term @First 8ation@ is of %anadian origin referring to the indigenous peoples of that territory" particularly those
&nown as Indians. In %anada" each of these indigenous peoples is eDually entitled to be called @First 8ation"@ hence"
all of them are usually described collectively by the plural @First 8ations.@
9?<:
2o that e'tent" the M)*#*1" by identifying
the Aangsamoro people as @t<e First 8ation@ # suggesting its e'clusive entitlement to that designation # departs from
the %anadian usage of the term.
2he M)*#*1 then mentions for the first time the @BC:G?CEoro '@rAFAcCD E:tAtB@ A=(! to which it grants the authority
and jurisdiction over the *ncestral 1omain and *ncestral Lands of the Aangsamoro.
9?>:
A. TerrAtorB
2he territory of the Aangsamoro homeland is described as the land mass as well as the maritime" terrestrial" fluvial and
alluvial domains" including the aerial domain and the atmospheric space above it" embracing the Mindanao#Sulu#
Palawan geographic region.
9?.:
More specifically" the core of the A=( is defined as the present geographic area of the *0MM # thus constituting the
following areasB Lanao del Sur" Maguindanao" Sulu" 2awi#2awi" Aasilan" and Marawi %ity. Significantly" this core also
includes certain municipalities of Lanao del 8orte that voted for inclusion in the *0MM in the ,--3 plebiscite.
9?5:
)utside of this core" the A=( is to cover other provinces" cities" municipalities and barangays" which are grouped into
two categories" %ategory * and %ategory A. (ach of these areas is to be subjected to a plebiscite to be held on
different dates" years apart from each other. 2hus" %ategory * areas are to be subjected to a plebiscite not later than
twelve 3,! months following the signing of the M)*#*1.
96-:
%ategory A areas" also called @Special Intervention *reas"@
on the other hand" are to be subjected to a plebiscite twenty#five ,+! years from the signing of a separate agreement #
the %omprehensive %ompact.
963:
2he Parties to the M)*#*1 stipulate that the A=( shall have jurisdiction over all natural resources within its @ internal
waters"@ defined as e'tending fifteen 3+! &ilometers from the coastline of the A=( areaJ
96,:
that the A=( shall also have
@territorial waters"@ which shall stretch beyond the A=( internal waters up to the baselines of the 0epublic of the
Philippines 0P! south east and south west of mainland MindanaoJ and that within these territorial waters" the A=( and
the @%entral /overnment@ used interchangeably with 0P! shall e'ercise IoA:t jurisdiction" authority and management
over all natural resources.
96?:
!otabl"# the jurisdiction o$er the internal waters is not similarl" described as %joint&%
2he M)*#*1 further provides for the ?<CrA:G of minerals on the territorial waters between the %entral /overnment
and the A=(" in favor of the latter" through production sharing and economic cooperation agreement.
966:
2he activities
which the Parties are allowed to conduct on the territorial waters are enumerated" among which are the e'ploration
7
and utili;ation of natural resources" regulation of shipping and fishing activities" and the enforcement of police and
safety measures.
96+:
'here is no similar pro$ision on the sharng of minerals and allowed acti$ities with respect to the
internal waters of the ()*&
%. RE&O#RCE&
2he M)*#*1 states that the A=( is free to enter into any economic cooperation and trade relations with foreign
countries and shall have the option to establish trade missions in those countries. Such relationships and
understandings" however" are not to include aggression against the /0P. 2he A=( may also enter into environmental
cooperation agreements.
96<:
2he e+ternal defense of the A=( is to remain the duty and obligation of the %entral /overnment. 2he %entral
/overnment is also bound to @ta&e necessary steps to ensure the A=(Cs participation in international meetings and
events@ li&e those of the *S(*8 and the speciali;ed agencies of the K8. 2he A=( is to be entitled to participate in
Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental
protection and eDuitable sharing of incomes and revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain.
96>:
With regard to the right of e'ploring for" producing" and obtaining all potential sources of energy" petroleum" fossil fuel"
mineral oil and natural gas" the jurisdiction and control thereon is to be vested in the A=( @as the party having control
within its territorial jurisdiction.@ 2his right carries the pro$iso that" @in times of national emergency" when public interest
so reDuires"@ the %entral /overnment may" for a fi'ed period and under reasonable terms as may be agreed upon by
both Parties" assume or direct the operation of such resources.
96.:
2he sharing between the %entral /overnment and the A=( of total production pertaining to natural resources is to be
>+B,+ in favor of the A=(.
965:
2he M)*#*1 provides that legitimate grievances of the Aangsamoro people arising from any unjust dispossession of
their territorial and proprietary rights" customary land tenures" or their marginali;ation shall be ac&nowledged.
Whenever restoration is no longer possible" reparation is to be in such form as mutually determined by the Parties.
9+-:
2he A=( may EoFA;B or cC:ceD the forest concessions" timber licenses" contracts or agreements" mining
concessions" Mineral Production and Sharing *greements MPS*!" Industrial Forest Management *greements
IFM*!" and other land tenure instruments granted by the Philippine /overnment" including those issued by the
present *0MM.
9+3:
1. GoHer:C:ce
2he M)*#*1 binds the Parties to invite a multinational third#party to observe and monitor the implementation of the
CoE=re<e:?AHe CoE=Cct. 2his compact is to embody the @details for the effective enforcement@ and @the
mechanisms and modalities for the actual implementation@ of the M)*#*1. 2he M)*#*1 e'plicitly provides that the
participation of the third party shall not in any way affect the status of the relationship between the %entral /overnment
and the A=(.
9+,:
T<e JC??ocACtAHeJ reDCtAo:?<A=
bet>ee: t<e Ce:trCD GoHer:Ee:t
C:F t<e B'E
2he M)*#*1 describes the relationship of the %entral /overnment and the A=( as @C??ocACtAHe"@ characteri;ed by
shared authority and responsibility. *nd it states that the structure of governance is to be based on e'ecutive"
legislative" judicial" and administrative institutions with defined powers and functions in the %omprehensive %ompact.
2he M)*#*1 provides that its provisions reDuiring @amendments to the e'isting legal framewor&@ shall ta&e effect upon
8
signing of the %omprehensive %ompact and upon effecting the aforesaid amendments" with due regard to the :o:)
FeroGCtAo: o; =rAor CGreeEe:t? and within the stipulated timeframe to be contained in the %omprehensive %ompact.
As will be discussed later, much of the present controversy hangs on the legality of this provision.
2he A=( is granted the power to build" develop and maintain its own institutions inclusive of civil service" electoral"
financial and ban&ing" education" legislation" legal" economic" police and internal security force" judicial system and
correctional institutions" the details of which shall be discussed in the negotiation of the comprehensive compact.
*s stated early on" the M)*#*1 was set to be signed on *ugust +" ,--. by 0odolfo /arcia and Mohagher IDbal"
%hairpersons of the Peace 8egotiating Panels of the /0P and the MILF" respectively. !otabl"# the penultimate
paragraph of the ,-.-.D identifies the signatories as %the representati$es of the Parties#% meaning the /RP and
,I01 themsel$es# and not merel" of the negotiating panels&
9+?:
In addition" the signature page of the M)*#*1 states
that it is @WI28(SS(1 A$@ 1atu& )thman Ain *bd 0a;a&" Special *dviser to the Prime Minister of Malaysia"
@(81)0S(1 A$@ *mbassador Sayed (lmasry" *dviser to )rgani;ation of the Islamic %onference )I%! Secretary
/eneral and Special (nvoy for Peace Process in Southern Philippines" and SI/8(1 @I8 27( P0(S(8%( )F@ 1r.
*lbert /. 0omulo" Secretary of Foreign *ffairs of 0P and 1atoC Seri Ktama 1r. 0ais Ain $atim" Minister of Foreign
*ffairs" Malaysia" all of whom were scheduled to sign the *greement last *ugust +" ,--..
*nne'ed to the M)*#*1 are two documents containing the respective lists cum maps of the provinces" municipalities"
and barangays under %ategories * and A earlier mentioned in the discussion on the strand on 2(00I2)0$.
V. PROCE"#RA$ &&#E&
A. RA=e:e??
2he power of judicial review is limited to actual cases or controversies.
9+6:
%ourts decline to issue advisory opinions or
to resolve hypothetical or feigned problems" or mere academic Duestions.
9++:
2he limitation of the power of judicial
review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power" to
assure that the courts will not intrude into areas committed to the other branches of government.
9+<:
*n actual case or controversy involves a conflict of legal rights" an assertion of opposite legal claims" susceptible of
judicial resolution as distinguished from a hypothetical or abstract difference or dispute. 2here must be a contrariety of
legal rights that can be interpreted and enforced on the basis of e'isting law and jurisprudence.
9+>:
2he %ourt can
decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for
judicial determination.
9+.:
0elated to the reDuirement of an actual case or controversy is the reDuirement of ripeness. * Duestion is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.
9+5:
For a
case to be considered ripe for adjudication" it is a prereDuisite that something had then been accomplished or
performed by either branch before a court may come into the picture"
9<-:
and the petitioner must allege the e'istence of
an immediate or threatened injury to itself as a result of the challenged action.
9<3:
7e must show that he has sustained
or is immediately in danger of sustaining some direct injury as a result of the act complained of.
9<,:
2he Solicitor /eneral argues that there is no justiciable controversy that is ripe for judicial review in the present
petitions" reasoning that
2he unsigned M)*#*1 is simply a list of consensus points subject to further negotiations and legislative enactments
as well as constitutional processes aimed at attaining a final peaceful agreement. Simply put" the M)*#*1 remains to
be a proposal that does not automatically create legally demandable rights and obligations until the list of operative
acts reDuired have been duly complied with. ' ' '
' ' ' '
In the cases at bar" it is respectfully submitted that this 7onorable %ourt has no authority to pass upon issues based on
9
hypothetical or feigned constitutional problems or interests with no concrete bases. %onsidering the preliminary
character of the M)*#*1" there are no concrete acts that could possibly violate petitionersC and intervenorsC rights
since the acts complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly"
petitioners and intervenorsC perceived injury" if at all" is merely imaginary and illusory apart from being unfounded and
based on mere conjectures. Knderscoring supplied!
2he Solicitor /eneral cites
9<?:
the following provisions of the M)*#*1B
TERRTOR%
' ' ' '
,. 2oward this end" the Parties enter into the following stipulationsB
' ' ' '
d. Without derogating from the reDuirements of prior agreements" the /overnment stipulates to conduct
and deliver" using all possible legal measures" within twelve 3,! months following the signing of the
M)*#*1" a plebiscite covering the areas as enumerated in the list and depicted in the map as
%ategory * attached herein the @*nne'@!. 2he *nne' constitutes an integral part of this framewor&
agreement. 2oward this end" the Parties shall endeavor to complete the negotiations and resolve all
outstanding issues on the %omprehensive %ompact within fifteen 3+! months from the signing of the
M)*#*1.
' ' ' '
GOVERNANCE
' ' ' '
>. 2he Parties agree that mechanisms and modalities for the actual implementation of this M)*#*1 shall be
spelt out in the %omprehensive %ompact to mutually ta&e such steps to enable it to occur effectively.
*ny provisions of the M)*#*1 reDuiring amendments to the e'isting legal framewor& shall come into force
upon the signing of a %omprehensive %ompact and upon effecting the necessary changes to the legal
framewor& with due regard to non#derogation of prior agreements and within the stipulated timeframe to be
contained in the %omprehensive %ompact.
9<6:
Knderscoring supplied!
2he Solicitor /eneralCs arguments fail to persuade.
%oncrete acts under the M)*#*1 are not necessary to render the present controversy ripe. In Pimentel# )r& $& .guirre"
9<+:
this %ourt heldB
' ' ' 9A:y the mere enactment of the Duestioned law or the approval of the challenged action" the dispute is said to
have ripened into a judicial controversy even without any other overt act. Indeed" even a singular violation of the
%onstitution andIor the law is enough to awa&en judicial duty.
' ' ' '
Ay the same to&en" when an act of the President" who in our constitutional scheme is a coeDual of %ongress" is
seriously alleged to have infringed the %onstitution and the laws ' ' ' settling the dispute becomes the duty and the
10
responsibility of the courts.
9<<:
In Santa 1e Independent School District $& Doe#
9<>:
the Knited States Supreme %ourt held that the challenge to the
constitutionality of the schoolCs policy allowing student#led prayers 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
unconstitutional on its face.
9<.:
2hat the law or act in Duestion is not yet effective does not negate ripeness. For e'ample" in !ew 2ork $& 3nited
States#
9<5:
decided in 355," the Knited States Supreme %ourt held that the action by the State of 8ew $or& challenging
the provisions of the Low#Level 0adioactive Waste Policy *ct was ripe for adjudication even if the Duestioned provision
was not to ta&e effect until =anuary 3" 355<" because the parties agreed that 8ew $or& had to ta&e immediate action to
avoid the provisionCs conseDuences.
9>-:
2he present petitions pray for %ertiorari"
9>3:
Prohibition" and Mandamus. %ertiorari and Prohibition are remedies granted
by law when any tribunal" board or officer has acted" in the case of certiorari" or is proceeding" in the case of
prohibition" without or in e'cess of its jurisdiction or with grave abuse of discretion amounting to lac& or e'cess of
jurisdiction.
9>,:
Mandamus is a remedy granted by law when any tribunal" corporation" board" officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office" trust"
or station" or unlawfully e'cludes another from the use or enjoyment of a right or office to which such other is entitled.
9>?:
%ertiorari" Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review andIor
prohibitInullify" when proper" acts of legislative and e'ecutive officials.
9>6:
2he authority of the /0P 8egotiating Panel is defined by ('ecutive )rder 8o. ? (.). 8o. ?!" issued on February ,."
,--3.
9>+:
2he said e'ecutive order reDuires that @9t:he governmentCs policy framewor& for peace" including the
systematic approach and the administrative structure for carrying out the comprehensive peace process ' ' ' be
governed by this ('ecutive )rder.@
9><:
2he present petitions allege that respondents /0P Panel and P*PP (speron drafted the terms of the M)*#*1 without
consulting the local government units or communities affected" nor informing them of the proceedings. *s will be
discussed in greater detail later" such omission" by itself" constitutes a departure b" respondents from their mandate
under *&-& !o& 4&
Furthermore" the petitions allege that the provisions of the M)*#*1 violate the %onstitution. 2he M)*#*1 provides
that @any provisions of the M)*#*1 reDuiring amendments to the e'isting legal framewor& shall come into force upon
the signing of a %omprehensive %ompact and upon effecting the necessary changes to the legal framewor&"@ implying
an amendment of the %onstitution to accommodate the M)*#*1. 2his stipulation" in effect" G@CrC:teeF to the MILF
the amendment of the %onstitution. Such act constitutes another $iolation of its authorit" . *gain" these points will be
discussed in more detail later.
*s the petitions allege acts or omissions on the part of respondent that e9ceeF t<eAr C@t<orAtB " by violating their
duties under (.). 8o. ? and the provisions of the %onstitution and statutes" the petitions ma&e a prima facie case for
%ertiorari" Prohibition" and Mandamus" and an actual case or controversy ripe for adjudication e'ists. -<e: C: Cct o;
C brC:c< o; GoHer:Ee:t A? ?erAo@?DB CDDeGeF to <CHe A:;rA:GeF t<e Co:?tAt@tAo:, At becoEe? :ot o:DB t<e rAG<t
b@t A: ;Cct t<e F@tB o; t<e I@FAcACrB to ?ettDe t<e FA?=@te.
9>>:
B. Locus Standi
For a party to have locus standi" one must allege @such a personal sta&e in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional Duestions.@
9>.:
Aecause constitutional cases are often public actions in which the relief sought is li&ely to affect other persons" a
preliminary Duestion freDuently arises as to this interest in the constitutional Duestion raised.
9>5:
11
When suing as a citizen" the person complaining must allege that he has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of
the statute or act complained of.
9.-:
When the issue concerns a public right" it is sufficient that the petitioner is a citi;en
and has an interest in the e'ecution of the laws.
9.3:
For a ta+pa"er" one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected
to an illegal purpose" or that there is a wastage of public funds through the enforcement of an invalid or
unconstitutional law.
9.,:
2he %ourt retains discretion whether or not to allow a ta'payerCs suit.
9.?:
In the case of a legislator or member of 5ongress" an act of the ('ecutive that injures the institution of %ongress
causes a derivative but nonetheless substantial injury that can be Duestioned by legislators. * member of the 7ouse of
0epresentatives has standing to maintain inviolate the prerogatives" powers and privileges vested by the %onstitution
in his office.
9.6:
*n organization may be granted standing to assert the rights of its members"
9.+:
but the mere invocation by the
Integrated (ar of the Philippines or an" member of the legal profession of the duty to preserve the rule of law does not
suffice to clothe it with standing.
9.<:
*s regards a local go$ernment unit L/K!" it can see& relief in order to protect or vindicate an interest of its own" and of
the other L/Ks.
9.>:
Intervenors" meanwhile" may be given legal standing upon showing of facts that satisfy the reDuirements of the law
authori;ing intervention"
9..:
such as a legal interest in the matter in litigation" or in the success of either of the parties.
In any case" the %ourt has discretion to rela' the procedural technicality on locus standi# given the liberal attitude it has
e'ercised" highlighted in the case of Da$id $& ,acapagal-.rro"o#
9.5:
where technicalities of procedure were brushed
aside" the constitutional issues raised being of paramount public interest or of transcendental importance deserving
the attention of the %ourt in view of their seriousness" novelty and weight as precedents.
95-:
2he %ourtCs forbearing
stance on locus standi on issues involving constitutional issues has for its purpose the protection of fundamental rights.
In not a few cases" the %ourt" in &eeping with its duty under the %onstitution to determine whether the other branches
of government have &ept themselves within the limits of the %onstitution and the laws and have not abused the
discretion given them" has brushed aside technical rules of procedure.
953:
In the petitions at bar" petitioners ProHA:ce o; Nort< CotCbCto /.0. 8o. 3.?+53! ProHA:ce o; 2CEboC:GC FeD Norte
/.0. 8o. 3.?5+3!" CAtB o; DAGC: /.0. 8o. 3.?.5?! and CAtB o; 2CEboC:GC /.0. 8o. 3.?>+,! and petitioners#in#
intervention ProHA:ce o; &@DtC: 0@FCrCt, CAtB o; ?CbeDC and *@:AcA=CDAtB o; $A:CEo: have locus standi in view of
the direct and substantial injury that they" as L/Ks" would suffer as their territories" whether in whole or in part" are to
be included in the intended domain of the A=(. 2hese petitioners allege that they did not vote for their inclusion in the
*0MM which would be e'panded to form the A=( territory. PetitionersC legal standing is thus beyond doubt.
In /.0. 8o. 3.?5<," petitioners Er:e?to *CceFC, 'eIoECr BA:CB and AK@ADA:o PAEe:teD would have no standing
as citi;ens and ta'payers for their failure to specify that they would be denied some right or privilege or there would be
wastage of public funds. 2he fact that they are a former Senator" an incumbent mayor of Ma&ati %ity" and a resident of
%agayan de )ro" respectively" is of no conseDuence. %onsidering their invocation of the transcendental importance of
the issues at hand" however" the %ourt grants them standing.
Intervenors !rC:LDA: "rADo: and AFeD TCEC:o" in alleging their standing as ta'payers" assert that government funds
would be e'pended for the conduct of an illegal and unconstitutional plebiscite to delineate the A=( territory. )n that
score alone" they can be given legal standing. 2heir allegation that the issues involved in these petitions are of
@undeniable transcendental importance@ clothes them with added basis for their personality to intervene in these
petitions.
12
With regard to &e:Ctor *C:@eD Ro9C?" his standing is premised on his being a member of the Senate and a citi;en to
enforce compliance by respondents of the publicCs constitutional right to be informed of the M)*#*1" as well as on a
genuine legal interest in the matter in litigation" or in the success or failure of either of the parties. 7e thus possesses
the reDuisite standing as an intervenor.
With respect to Intervenors R@B EDAC? $o=eM, as a former congressman of the ?
rd
district of 1avao %ity" a ta'payer
and a member of the Aagobo tribeJ CCrDo B. GoEeM, et CD., as members of the IAP Palawan chapter" citi;ens and
ta'payersJ *CrA:o RAFCo, as ta'payer" resident and member of the Sangguniang Panlungsod of %otabato %ity3 and
0A?A: B@9C:A, as ta'payer" they failed to allege any proper legal interest in the present petitions. =ust the same" the
%ourt e'ercises its discretion to rela' the procedural technicality on locus standi given the paramount public interest in
the issues at hand.
Intervening respondents *@?DAE *@DtA)&ectorCD *oHeEe:t ;or PeCce C:F "eHeDo=Ee:t, an advocacy group for
justice and the attainment of peace and prosperity in Muslim MindanaoJ and *@?DAE $eGCD A??A?tC:ce !o@:FCtAo:
:c&" a non#government organi;ation of Muslim lawyers" allege that they stand to be benefited or prejudiced" as the
case may be" in the resolution of the petitions concerning the M)*#*1" and prays for the denial of the petitions on the
grounds therein stated. Such legal interest suffices to clothe them with standing.
B. *oot:e??
0espondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for
by petitioners and the subseDuent pronouncement of the ('ecutive Secretary that @9n:o matter what the Supreme
%ourt ultimately decides9": the government will not sign the M)*.@
95,:
In lending credence to this policy decision" the Solicitor /eneral points out that the President had already disbanded
the /0P Peace Panel.
95?:
In Da$id $& ,acapagal-.rro"o"
956:
this %ourt held that the @moot and academic@ principle not being a magical formula
that automatically dissuades courts in resolving a case" it will decide cases" otherwise moot and academic" if it finds
that a! there is a grave violation of the %onstitutionJ
95+:
b! the situation is of e'ceptional character and paramount
public interest is involvedJ
95<:
c! the constitutional issue raised reDuires formulation of controlling principles to guide the
bench" the bar" and the publicJ
95>:
and d! the case is capable of repetition yet evading review.
95.:
*nother e'clusionary circumstance that may be considered is where there is a voluntary cessation of the activity
complained of by the defendant or doer. 2hus" once a suit is filed and the doer voluntarily ceases the challenged
conduct" it does not automatically deprive the tribunal of power to hear and determine the case and does not render
the case moot especially when the plaintiff see&s damages or prays for injunctive relief against the possible recurrence
of the violation.
955:
2he present petitions fall sDuarely into these e'ceptions to thus thrust them into the domain of judicial review. 2he
grounds cited above in Da$id are just as applicable in the present cases as they were" not only in Da$id" but also in
Pro$ince of (atangas $& Romulo
93--:
and ,analo $& 5alderon
93-3:
where the %ourt similarly decided them on the merits"
supervening events that would ordinarily have rendered the same moot notwithstanding.
PetAtAo:? :ot EooteF
%ontrary then to the asseverations of respondents" the non#signing of the M)*#*1 and the eventual dissolution of the
/0P Peace Panel did not moot the present petitions. It bears emphasis that the signing of the ,-.-.D did not push
through due to the 5ourt's issuance of a 'emporar" Restraining -rder&
%ontrary too to respondentsC position" the M)*#*1 cannot be considered a mere @list of consensus points"@ especially
given its :oEe:cDCt@re" the :eeF to <CHe At ?AG:eF or A:AtACDeF by all the parties concerned on *ugust +" ,--." and
the ;Cr)reCc<A:G Co:?tAt@tAo:CD AE=DAcCtAo:? of these @consensus points"@ foremost of which is the creation of the
13
A=(.
In fact" as what will" in the main" be discussed" t<ere A? C coEEAtEe:t o: t<e =Crt o; re?=o:Fe:t? to CEe:F C:F
e;;ect :ece??CrB c<C:Ge? to t<e e9A?tA:G DeGCD ;rCEe>orL ;or certCA: =roHA?Ao:? o; t<e *OA)A" to tCLe e;;ect.
%onseDuently" the present petitions are not confined to the terms and provisions of the M)*#*1" but to other o:)
GoA:G and ;@t@re negotiations and agreements necessary for its reali;ation . 2he petitions have not" therefore" been
rendered moot and academic simply by the public disclosure of the M)*#*1"
93-,:
the manifestation that it will not be
signed as well as the disbanding of the /0P Panel not withstanding.
PetAtAo:? Cre AEb@eF >At< =CrCEo@:t =@bDAc A:tere?t
2here is no gainsaying that the petitions are imbued with paramount public interest" involving a significant part of the
countryCs territory and the wide#ranging political modifications of affected L/Ks. 2he assertion t<Ct t<e *OA)A" A?
?@bIect to ;@rt<er DeGCD e:CctEe:t? A:cD@FA:G =o??AbDe Co:?tAt@tAo:CD CEe:FEe:t? Eore t<C: eHer =roHAFe?
AE=et@? ;or t<e Co@rt to ;orE@DCte co:troDDA:G =rA:cA=De? to G@AFe t<e be:c<, t<e bCr, t<e =@bDAc C:F, A: t<A?
cC?e, t<e GoHer:Ee:t C:F At? :eGotACtA:G e:tAtB.
0espondents cite Suplico $& !*D.# et al.
93-?:
where the %ourt did not @pontificat9e: on issues which no longer
legitimately constitute an actual case or controversy 9as this: will do more harm than good to the nation as a whole.@
2he present petitions must be differentiated from Suplico. Primarily" in Suplico" what was assailed and eventually
cancelled was a stand#alone government procurement contract for a national broadband networ& involving a one#time
contractual relation between two parties##the government and a private foreign corporation. *s the issues therein
involved specific government procurement policies and standard principles on contracts" the majority opinion in
Suplico found nothing e'ceptional therein" the factual circumstances being peculiar only to the transactions and parties
involved in the controversy.
T<e *OA)A" A? =Crt o; C ?erAe? o; CGreeEe:t?
In the present controversy" the M)*#*1 is a ?AG:A;AcC:t =Crt o; C ?erAe? o; CGreeEe:t? necessary to carry out the
2ripoli *greement ,--3. 2he M)*#*1 which dwells on the *ncestral 1omain *spect of said 2ripoli *greement is the
third such component to be underta&en following the implementation of the Security *spect in *ugust ,--3 and the
7umanitarian" 0ehabilitation and 1evelopment *spect in May ,--,.
*ccordingly" even if the ('ecutive Secretary" in his Memorandum of *ugust ,." ,--. to the Solicitor /eneral" has
stated that @no matter what the Supreme %ourt ultimately decides9": the government will not sign the M)*9#*1:"@
mootness will not set in in light of the terms of the 2ripoli *greement ,--3.
NeeF to ;orE@DCte =rA:cA=De?)G@AFeDA:e?
Surely" the present M)*#*1 can be renegotiated or another one will be drawn up to cCrrB o@t t<e A:ce?trCD "oECA:
A?=ect o; t<e TrA=oDA AGreeEe:t 2001" in another or in any form" which could contain similar or significantly drastic
provisions. While the %ourt notes the word of the ('ecutive Secretary that the government @is committed to securing
an agreement that is both constitutional and eDuitable because that is the only way that long#lasting peace can be
assured"@ it is minded to render a decision on the merits in the present petitions to ;orE@DCte co:troDDA:G =rA:cA=De?
to G@AFe t<e be:c<, t<e bCr, t<e =@bDAc C:F, Eo?t e?=ecACDDB, t<e GoHer:Ee:t A: :eGotACtA:G >At< t<e *$!
reGCrFA:G A:ce?trCD "oECA:.
0espondents invite the %ourtCs attention to the separate opinion of then %hief =ustice *rtemio Panganiban in Sanlakas
$& Re"es
93-6:
in which he stated thatthe doctrine of @capable of repetition yet evading review@ can override mootness"
@provided the party raising it in a proper case has been andIor continue to be prejudiced or damaged as a direct result
of their issuance.@ 2hey contend that the %ourt must have jurisdiction over the subject matter for the doctrine to be
invo&ed.
14
2he present petitions all contain prayers for Prohibition over which this %ourt e'ercises original jurisdiction. While /.0.
8o. 3.?.5? %ity of Iligan v. /0P! is a petition for Injunction and 1eclaratory 0elief" the %ourt will treat it as one for
Prohibition as it has far reaching implications and raises Duestions that need to be resolved.
93-+:
*t all events" the %ourt
has jurisdiction over most if not the rest of the petitions.
Indeed" the present petitions afford a proper venue for the %ourt to again apply the doctrine immediately referred to as
what it had done in a number of landmar& cases.
93-<:
2here is a reasonable e'pectation that petitioners" particularly the
Provinces of 8orth %otabato" Hamboanga del 8orte and Sultan 4udarat" the %ities of Hamboanga" Iligan and Isabela"
and the Municipality of Linamon" will again be subjected to the same problem in the future as respondentsC actions are
capable of repetition" in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot" respondents having" by
%ompliance of *ugust >" ,--." provided this %ourt and petitioners with official copies of the final draft of the M)*#*1
and its anne'es. 2oo" intervenors have been furnished" or have procured for themselves" copies of the M)*#*1.
V. &#B&TANTVE &&#E&
*s culled from the Petitions and Petitions#in#Intervention" there are basically two SKAS2*82IE( issues to be resolved"
one relating to the manner in which the M)*#*1 was negotiated and finali;ed" the other relating to its provisions" $izB
3. 1id respondents violate constitutional and statutory provisions on public consultation and the right to
information when they negotiated and later initialed the M)*#*1N
,. 1o the contents of the M)*#*1 violate the %onstitution and the lawsN
O: t<e ;Ar?t &@b?tC:tAHe A??@e
Petitioners invo&e their constitutional rAG<t to A:;orECtAo: o: ECtter? o; =@bDAc co:cer:" as provided in Section >"
*rticle III on the Aill of 0ightsB
Sec. >. 2he right of the people to information on matters of public concern shall be recogni;ed. *ccess to official
records" and to documents" and papers pertaining to official acts" transactions" or decisions" as well as to government
research data used as basis for policy development" shall be afforded the citi;en" subject to such limitations as may be
provided by law.
93->:
*s early as 356." in Subido $& -zaeta"
93-.:
the %ourt has recogni;ed the statutory right to e'amine and inspect public
records" a right which was eventually accorded constitutional status.
2he right of access to public documents" as enshrined in both the 35>? %onstitution and the 35.> %onstitution" has
been recogni;ed as a self#e'ecutory constitutional right.
93-5:
In the 35>< case of (aldoza $& 6on& )udge Dimaano"
933-:
the %ourt ruled that access to public records is predicated on
the right of the people to acDuire information on matters of public concern since" undoubtedly" in a democracy" the
pubic has a legitimate interest in matters of social and political significance.
' ' ' 2he incorporation of this right in the %onstitution is a recognition of the fundamental role of free e'change of
information in a democracy. 2here can be no realistic perception by the public of the nationCs problems" nor a
meaningful democratic decision#ma&ing if they are denied access to information of general interest. Information is
needed to enable the members of society to cope with the e'igencies of the times. *s has been aptly observedB
@Maintaining the flow of such information depends on protection for both its acDuisition and its dissemination since" if
either process is interrupted" the flow inevitably ceases.@ ' ' '
9333:
In the same way that free discussion enables members of society to cope with the e'igencies of their time" access to
information of general interest aids the people in democratic decision#ma&ing by giving them a better perspective of
the vital issues confronting the nation
933,:
so that they may be able to critici;e and participate in the affairs of the
government in a responsible" reasonable and effective manner. It is by ensuring an unfettered and uninhibited
15
e'change of ideas among a well#informed public that a government remains responsive to the changes desired by the
people.
933?:
T<e *OA)A" A? C ECtter o; =@bDAc co:cer:
2hat the subject of the information sought in the present cases is a matter of public concern
9336:
faces no serious
challenge. In fact" respondents admit that the M)*#*1 is indeed of public concern.
933+:
In previous cases" the %ourt
found that the regularity of real estate transactions entered in the 0egister of 1eeds"
933<:
the need for adeDuate notice
to the public of the various laws"
933>:
the civil service eligibility of a public employee"
933.:
the proper management of /SIS
funds allegedly used to grant loans to public officials"
9335:
the recovery of the MarcosesC alleged ill#gotten wealth"
93,-:
and
the identity of party#list nominees"
93,3:
among others" are matters of public concern. Kndoubtedly" t<e *OA)A" ?@bIect
o; t<e =re?e:t cC?e? A? o; =@bDAc co:cer:" involving as it does the ?oHereAG:tB C:F terrAtorACD A:teGrAtB o; t<e
&tCte" which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and negotiations leading to the
consummation of the contract. In not distinguishing as to the e'ecutory nature or commercial character of agreements"
the %ourt has categorically ruledB
' ' ' 92:he right to information @contemplates inclusion of negotiations leading to the consummation of the
transaction. @ %ertainly" a consummated contract is not a reDuirement for the e'ercise of the right to information.
)therwise" the people can never e'ercise the right if no contract is consummated" and if one is consummated" it may
be too late for the public to e'pose its defects.
0eDuiring a consummated contract will &eep the public in the dar& until the contract" which may be grossly
disadvantageous to the government or even illegal" becomes fait accompli. 2his negates the State policy of full
transparency on matters of public concern" a situation which the framers of the %onstitution could not have intended.
Such a reDuirement will prevent the citi;enry from participating in the public discussion of any proposed contract"
effectively truncating a basic right enshrined in the Aill of 0ights. We can allow neither an emasculation of a
constitutional right" nor a retreat by the State of its avowed @policy of full disclosure of all its transactions involving
public interest.@
93,,:
(mphasis and italics in the original!
Intended as a @splendid s"mmetr"@
93,?:
to the right to information under the Aill of 0ights is the =oDAcB o; =@bDAc
FA?cDo?@re under Section ,." *rticle II of the %onstitution readingB
Sec. ,.. Subject to reasonable conditions prescribed by law" the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
93,6:
2he policy of full public disclosure enunciated in above#Duoted Section ,. complements the right of access to
information on matters of public concern found in the Aill of 0ights. 2he right to information guarantees the right of the
people to demand information" while Section ,. recogni;es the duty of officialdom to give information even if nobody
demands.
93,+:
2he policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely
open democracy" with the peopleCs right to &now as the centerpiece. It is a mandate of the State to be accountable by
following such policy.
93,<:
2hese provisions are vital to the e'ercise of the freedom of e'pression and essential to hold
public officials at all times accountable to the people.
93,>:
Whether Section ,. is self#e'ecutory" the records of the deliberations of the %onstitutional %ommission so discloseB
M0. SK*0(H. *nd since this is not self#e'ecutory" this policy will not be enunciated or will not be in force and effect
until after %ongress shall have provided it.
M0. )PL(. I e'pect it to influence the climate of public ethics immediately but" of course" the implementing law will
have to be enacted by %ongress" Mr. Presiding )fficer.
93,.:
2he following discourse" after %ommissioner 7ilario 1avide" =r." sought clarification on the issue" is enlightening.
M0. 1*EI1(. I would li&e to get some clarifications on this. Mr. Presiding )fficer" did I get the /entleman correctly as
having said that this is not a self#e'ecuting provisionN It would reDuire a legislation by %ongress to implementN
16
M0. )PL(. $es. )riginally" it was going to be self#e'ecuting" but I accepted an amendment from %ommissioner
0egalado" so that the safeguards on national interest are modified by the clause @as may be provided by law@
M0. 1*EI1(. Aut as worded" Foe? At :ot EeC: t<Ct t<A? >ADD AEEeFACteDB tCLe e;;ect C:F Co:Gre?? ECB =roHAFe
;or reC?o:CbDe ?C;eG@CrF? on the sole ground national interestN
M0. )PL(. %e?. t<A:L ?o, *r. Pre?AFA:G O;;Acer, ?CAF eCrDAer t<Ct At ?<o@DF AEEeFACteDB A:;D@e:ce t<e cDAECte
o; t<e co:F@ct o; =@bDAc C;;CAr? but" of course" %ongress here may no longer pass a law revo&ing it" or if this is
approved" revo&ing this principle" which is inconsistent with this policy.
93,5:
(mphasis supplied!
Indubitably" t<e e;;ectAHAtB o; t<e =oDAcB o; =@bDAc FA?cDo?@re :eeF :ot C>CAt t<e =C??A:G o; C ?tCt@te. *s
%ongress cannot revo&e this principle" it is merely directed to provide for @reasonable safeguards.@ 2he complete and
effective e'ercise of the right to information necessitates that its complementary provision on public disclosure derive
the same self#e'ecutory nature. Since both provisions go hand#in#hand" it is absurd to say that the broader
93?-:
right to
information on matters of public concern is already enforceable while the correlative duty of the State to disclose its
transactions involving public interest is not enforceable until there is an enabling law. 0espondents cannot thus point to
the absence of an implementing legislation as an e'cuse in not effecting such policy.
*n essential element of these freedoms is to &eep open a continuing dialogue or process of communication between
the government and the people. It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the peopleCs will.
93?3:
(nvisioned to be
corollary to the twin rights to information and disclosure is the design for feedbac& mechanisms.
MS. 0)S*0I) A0*I1. $es. *nd lastly" Mr. Presiding )fficer" >ADD t<e =eo=De be CbDe to =CrtAcA=CteN -ADD t<e
GoHer:Ee:t =roHAFe ;eeFbCcL Eec<C:A?E? ?o t<Ct t<e =eo=De cC: =CrtAcA=Cte C:F cC: reCct ><ere t<e e9A?tA:G
EeFAC ;CcADAtAe? Cre :ot CbDe to =roHAFe ;@DD ;eeFbCcL Eec<C:A?E? to t<e GoHer:Ee:tN ?@==o?e t<A? >ADD be
=Crt o; t<e GoHer:Ee:t AE=DeEe:tA:G o=erCtAo:CD Eec<C:A?E?.
M0. )PL(. $es. I thin& through their elected representatives and that is how these courses ta&e place. 2here is a
message and a feedbac&" both ways.
' ' ' '
MS. 0)S*0I) A0*I1. Mr. Presiding )fficer" may I just ma&e one last sentenceN
t<A:L ><e: >e tCDL Cbo@t t<e ;eeFbCcL :et>orL, >e Cre :ot tCDLA:G Cbo@t =@bDAc o;;AcACD? b@t CD?o :et>orL o;
=rAHCte b@?A:e?? o[r] coEE@:AtB)bC?eF orGC:AMCtAo:? t<Ct >ADD be reCctA:G. *s a matter of fact" we will put more
credence or credibility on the private networ& of volunteers and voluntary community#based organi;ations. So I do not
thin& we are afraid that there will be another )M* in the ma&ing.93?,: (mphasis supplied!
2he imperative of a public consultation" as a species of the right to information" is evident in the @marching orders@ to
respondents. 2he mechanics for the duty to disclose information and to conduct public consultation regarding the
peace agenda and process is manifestly provided by (.). 8o. ?.
93??:
2he preambulatory clause of (.). 8o. ? declares
that there is a need to further enhance the contribution of civil society to the comprehensive peace process by
institutionali;ing the peopleCs participation.
)ne of the three underlying principles of the comprehensive peace process is that it @should be community#based"
reflecting the sentiments" values and principles important to all Filipinos@ and @shall be defined not by the government
alone" nor by the different contending groups only" but by all Filipinos as one community.@
93?6:
Included as a component
of the comprehensive peace process is consensus#building and empowerment for peace" which includes @continuing
consultations on both national and local levels to build consensus for a peace agenda and process" and the
mobili;ation and facilitation of peopleCs participation in the peace process.@
93?+:
CDeCrDB, E.O. No. 3 co:teE=DCte? :ot I@?t t<e co:F@ct o; C =DebA?cAte to e;;ect@Cte Jco:tA:@A:GJ co:?@DtCtAo:?,
co:trCrB to re?=o:Fe:t?O =o?AtAo: t<Ct =DebA?cAte A? JEore t<C: ?@;;AcAe:t co:?@DtCtAo:.@
93?<:
17
Further" (.). 8o. ? enumerates the functions and responsibilities of the P*PP" one of which is to @9c:onduct regular
dialogues with the 8ational Peace Forum 8PF! and other peace partners to see& relevant information" comments"
recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace
process.@
93?>:
(.). 8o. ? mandates the establishment of the 8PF to be @the principal forum for the P*PP to consult with
and see& advi9c:e from the peace advocates" peace partners and concerned sectors of society on both national and
local levels" on the implementation of the comprehensive peace process" as well as for government9#:civil society
dialogue and consensus#building on peace agenda and initiatives.@
93?.:
: ;A:e, E.O. No. 3 e?tCbDA?<e? =etAtAo:er?O rAG<t to be co:?@DteF o: t<e =eCce CGe:FC, C? C coroDDCrB to t<e
co:?tAt@tAo:CD rAG<t to A:;orECtAo: C:F FA?cDo?@re.
PAPP E?=ero: coEEAtteF GrCHe Cb@?e o; FA?cretAo:
2he PAPP coEEAtteF GrCHe Cb@?e o; FA?cretAo: when he ;CADeF to carry out the pertinent consultation. 2he furtive
process by which the M)*#*1 was designed and crafted r@:? co:trCrB to C:F A: e9ce?? o; t<e DeGCD C@t<orAtB " and
amounts to a whimsical" capricious" oppressive" arbitrary and despotic e'ercise thereof.
2he %ourt may not" of course" reDuire the P*PP to conduct the consultation in a particular wa" or manner. It may"
however" reDuire him to comply with the law and discharge the functions within the authorit" granted by the President.
93?5:
Petitioners are not claiming a seat at the negotiating table" contrary to respondentsC retort in justifying the denial of
petitionersC right to be consulted. 0espondentsC stance manifests the manner by which they treat the salient provisions
of (.). 8o. ? on peopleCs participation. Such disregard of the e'press mandate of the President is not much different
from superficial conduct toward to&en provisos that border on classic lip service.
936-:
It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty enjoined.
*s for respondentsC invocation of the doctrine of e'ecutive privilege" it is not tenable under the premises. 2he argument
defies sound reason when contrasted with (.). 8o. ?Cs e'plicit provisions on continuing consultation and dialogue on
both national and local levels. T<e e9ec@tAHe orFer eHe: recoG:AMe? t<e e9ercA?e o; t<e =@bDAcO? rAG<t even before
the /0P ma&es its official recommendations or before the government proffers its definite propositions.
9363:
It bear
emphasis that (.). 8o. ? see&s to elicit relevant advice" information" comments and recommendations from the
people through dialogue.
*2 *LL (E(82S" respondents effectively waived the defense of e'ecutive privilege in view of their unDualified
disclosure of the official copies of the final draft of the M)*#*1. Ay unconditionally complying with the %ourtCs *ugust
6" ,--. 0esolution" without a prayer for the documentCs disclosure in camera" or without a manifestation that it was
complying therewith e+ abundante ad cautelam.
PetitionersC assertion that the Local /overnment %ode L/%! of 3553 declares it a State policy to @reDuire all national
agencies and offices to conduct periodic consultations with appropriate local government units" non#governmental and
peopleCs organi;ations" and other concerned sectors of the community before any project or program is implemented
in their respective jurisdictions@
936,:
is well#ta&en. 2he L/% chapter on intergovernmental relations puts flesh into this
avowed policyB
Prior 5onsultations Required. # 8o project or program shall be implemented by government authorities unless the
consultations mentioned in Sections , c! and ,< hereof are complied with" and prior approval of the sanggunian
concerned is obtainedB Provided" 2hat occupants in areas where such projects are to be implemented shall not be
evicted unless appropriate relocation sites have been provided" in accordance with the provisions of the %onstitution.
936?:
Italics and underscoring supplied!
In 0ina# )r& $& 6on& Pa78o"
9366:
the %ourt held that the above#stated policy and above#Duoted provision of the L/K apply
only to national programs or projects which are to be implemented in a particular local community. *mong the
programs and projects covered are those that are critical to the environment and human ecology including those that
may call for the eviction of a particular group of people residing in the locality where these will be implemented.
936+:
T<e
18
*OA)A" A? o:e =ec@DACr =roGrCE t<Ct @:eK@AHocCDDB C:F @:ADCterCDDB He?t? o>:er?<A= o; C HC?t terrAtorB to t<e
BC:G?CEoro =eo=De,
936<:
><Ac< co@DF =erHC?AHeDB C:F FrC?tAcCDDB re?@Dt to t<e FAC?=orC or FA?=DCceEe:t o; C
GreCt :@Eber o; A:<CbAtC:t? ;roE t<eAr totCD e:HAro:Ee:t.
With respect to the indigenous cultural communitiesIindigenous peoples I%%sIIPs!" whose interests are represented
herein by petitioner Lope; and are adversely affected by the M)*#*1" the I%%sIIPs have" under the IP0*" the right to
participate fully at all levels of decision#ma&ing in matters which may affect their rights" lives and destinies.
936>:
2he
M)*#*1" an instrument recogni;ing ancestral domain" failed to justify its non#compliance with the clear#cut
mechanisms ordained in said *ct"
936.:
which entails" among other things" the observance of the free and prior informed
consent of the I%%sIIPs.
8otably" the IP0* does :ot grant the ('ecutive 1epartment or any government agency the power to delineate and
recogni;e an ancestral domain claim b" mere agreement or compromise . 2he recognition of the ancestral domain is
the raison d'etre of the M)*#*1" without which all other stipulations or @consensus points@ necessarily must fail. In
proceeding to ma&e a sweeping declaration on ancestral domain" without complying with the IP0*" which is cited as
one of the 2)0 of the M)*#*1" re?=o:Fe:t? cDeCrDB trC:?ce:FeF t<e bo@:FCrAe? o; t<eAr C@t<orAtB. *s it seems"
even the heart of the M)*#*1 is still subject to necessary changes to the legal framewor&. While paragraph > on
/overnance suspends the effectivity of all provisions reDuiring changes to the legal framewor&" such clause is itself
invalid" as will be discussed in the following section.
Indeed" ours is an open society" with all the acts of the government subject to public scrutiny and available always to
public cogni;ance. 2his has to be so if the country is to remain democratic" with sovereignty residing in the people and
all government authority emanating from them.
9365:
ON THE &ECON" &#B&TANTVE &&#E
With regard to the provisions of the M)*#*1" there can be no Duestion that they cannot all be accommodated under
the present %onstitution and laws. 0espondents have admitted as much in the oral arguments before this %ourt" and
the M)*#*1 itself recogni;es the need to amend the e'isting legal framewor& to render effective at least some of its
provisions. 0espondents" nonetheless" counter that the M)*#*1 is free of any legal infirmity because any provisions
therein which are inconsistent with the present legal framewor& will not be effective until the necessary changes to that
framewor& are made. 2he validity of this argument will be considered later. For now" the %ourt shall pass upon how
T<e *OA)A" A? A:co:?A?te:t >At< t<e Co:?tAt@tAo: C:F DC>? C? =re?e:tDB >orFeF.
In general" the objections against the M)*#*1 center on the e'tent of the powers conceded therein to the A=(.
Petitioners assert that the powers granted to the A=( e'ceed those granted to any local government under present
laws" and even go beyond those of the present *0MM. Aefore assessing some of the specific powers that would have
been vested in the A=(" however" it would be useful to turn first to a general idea that serves as a unifying lin& to the
different provisions of the M)*#*1" namely" the international law concept of association. Significantly" the M)*#*1
e'plicitly alludes to this concept" indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph ? on 2(00I2)0$" paragraph 33 on 0(S)K0%(S" and paragraph 6 on
/)E(08*8%(. It is in the last mentioned provision" however" that the M)*#*1 most clearly uses it to describe the
envisioned relationship between the A=( and the %entral /overnment.
6. T<e reDCtAo:?<A= bet>ee: t<e Ce:trCD GoHer:Ee:t C:F t<e BC:G?CEoro I@rAFAcCD e:tAtB ?<CDD be C??ocACtAHe
c<CrCcterAMeF bB ?<CreF C@t<orAtB C:F re?=o:?AbADAtB with a structure of governance based on e'ecutive"
legislative" judicial and administrative institutions with defined powers and functions in the comprehensive compact. *
period of transition shall be established in a comprehensive peace compact specifying the relationship between the
%entral /overnment and the A=(. (mphasis and underscoring supplied!
2he nature of the "associative" relationship may have been intended to be defined more precisely in the still to be
forged %omprehensive %ompact. 8onetheless" given that there is a concept of @association@ in international law" and
19
the M)*#*1 # by its inclusion of international law instruments in its 2)0# placed itself in an international legal conte't"
that concept of association may be brought to bear in understanding the use of the term @associati$e@ in the M)*#*1.
4eitner and 0eisman state that
9a:n association is formed when t>o ?tCte? of uneDual power voluntarily establish durable lin&s. In the basic model"
o:e ?tCte, t<e C??ocACte, FeDeGCte? certCA: re?=o:?AbADAtAe? to t<e ot<er, t<e =rA:cA=CD, ><ADe ECA:tCA:A:G At?
A:ter:CtAo:CD ?tCt@? C? C ?tCte. !ree C??ocACtAo:? re=re?e:t C EAFFDe Gro@:F bet>ee: A:teGrCtAo: C:F
A:Fe=e:Fe:ce. ' ' '
93+-:
(mphasis and underscoring supplied!
For purposes of illustration" the 0epublic of the Marshall Islands and the Federated States of Micronesia FSM!"
formerly part of the K.S.#administered 2rust 2erritory of the Pacific Islands"
93+3:
are associated states of the K.S.
pursuant to a %ompact of Free *ssociation. 2he currency in these countries is the K.S. dollar" indicating their very
close ties with the K.S." yet they issue their own travel documents" which is a mar& of their statehood. 2heir
international legal status as states was confirmed by the K8 Security %ouncil and by their admission to K8
membership.
*ccording to their compacts of free association" the Marshall Islands and the FSM generally have the capacity to
conduct foreign affairs in their own name and right" such capacity e'tending to matters such as the law of the sea"
marine resources" trade" ban&ing" postal" civil aviation" and cultural relations. 2he K.S. government" when conducting
its foreign affairs" is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it
K.S. government! regards as relating to or affecting either government.
In the event of attac&s or threats against the Marshall Islands or the FSM" the K.S. government has the authority and
obligation to defend them as if they were part of K.S. territory. 2he K.S. government" moreover" has the option of
establishing and using military areas and facilities within these associated states and has the right to bar the military
personnel of any third country from having access to these territories for military purposes.
It bears noting that in K.S. constitutional and international practice" free association is understood as an international
association between sovereigns. 2he %ompact of Free *ssociation is a treaty which is subordinate to the associated
nationCs national constitution" and each party may terminate the association consistent with the right of independence.
It has been said that" with the admission of the K.S.#associated states to the K8 in 355-" the K8 recogni;ed that the
*merican model of free association is actually based on an underlying status of independence.
93+,:
In international practice" the @associated state@ arrangement has usually been used as a trC:?AtAo:CD FeHAce of former
colonies on their way to full independence. ('amples of states that have passed through the status of associated
states as a transitional phase are *ntigua" St. 4itts#8evis#*nguilla" 1ominica" St. Lucia" St. Eincent and /renada. *ll
have since become independent states.
93+?:
Aac& to the M)*#*1" it contains many provisions which are consistent with the international legal concept of
association" specifically the followingB the A=(Cs capacity to enter into economic and trade relations with foreign
countries" the commitment of the %entral /overnment to ensure the A=(Cs participation in meetings and events in the
*S(*8 and the speciali;ed K8 agencies" and the continuing responsibility of the %entral /overnment over e'ternal
defense. Moreover" the A=(Cs right to participate in Philippine official missions bearing on negotiation of border
agreements" environmental protection" and sharing of revenues pertaining to the bodies of water adjacent to or
between the islands forming part of the ancestral domain" resembles the right of the governments of FSM and the
Marshall Islands to be consulted by the K.S. government on any foreign affairs matter affecting them.
2hese provisions of the M)* indicate" among other things" that the Parties CAEeF to He?t A: t<e B'E t<e ?tCt@? o; C:
associated state or, Ct C:B rCte, C ?tCt@? cDo?eDB C==ro9AECtA:G At .
T<e co:ce=t o; association A? :ot recoG:AMeF @:Fer t<e =re?e:t Co:?tAt@tAo:
8o province" city" or municipality" not even the *0MM" is recogni;ed under our laws as having an @associati$e@
relationship with the national government. Indeed" the concept implies powers that go beyond anything ever granted
20
by the %onstitution to any local or regional government. It also implies the recognition of the associated entit" as a
state. 2he %onstitution" however" does not contemplate any state in this jurisdiction other than the Philippine State"
much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.
(ven the mere concept animating many of the M)*#*1Cs provisions" therefore" already reDuires for its validity the
amendment of constitutional provisions" specifically the following provisions of *rticle OB
S(%2I)8 3. 2he territorial and political subdivisions of the 0epublic of the Philippines are the =roHA:ce?, cAtAe?,
E@:AcA=CDAtAe?, C:F bCrC:GCB?. 2here shall be C@to:oEo@? reGAo:? in Muslim Mindanao and the %ordilleras as
hereinafter provided.
S(%2I)8 3+. 2here shall be created autonomous regions in Muslim Mindanao and in the %ordilleras consisting of
provinces" cities" municipalities" and geographical areas sharing common and distinctive historical and cultural
heritage" economic and social structures" and other relevant characteristics >At<A: t<e ;rCEe>orL o; t<A?
Co:?tAt@tAo: C:F t<e :CtAo:CD ?oHereAG:tB C? >eDD C? terrAtorACD A:teGrAtB o; t<e Re=@bDAc o; t<e P<ADA==A:e? .
T<e B'E A? C ;Cr Eore =o>er;@D
e:tAtB t<C: t<e C@to:oEo@? reGAo:
recoG:AMeF A: t<e Co:?tAt@tAo:
It is not merely an e'panded version of the *0MM" the status of its relationship with the national government being
fundamentally different from that of the *0MM. Indeed" B'E A? C ?tCte A: CDD b@t :CEe C? At Eeet? t<e crAterAC o; C
?tCte DCAF Fo>: A: t<e *o:teHAFeo Co:He:tAo:"
93+6:
namely" a permanent population" a defined territory" a
government" and a capacity to enter into relations with other states.
(ven assuming arguendo that the M)*#*1 would not necessarily sever any portion of Philippine territory" t<e ?=ArAt
C:AECtA:G At # which has betrayed itself by its use of the concept of association # r@:? co@:ter to t<e :CtAo:CD
?oHereAG:tB C:F terrAtorACD A:teGrAtB o; t<e Re=@bDAc.
T<e Fe;A:A:G co:ce=t @:FerDBA:G t<e reDCtAo:?<A= bet>ee: t<e :CtAo:CD GoHer:Ee:t C:F t<e B'E beA:G At?eD;
co:trCrB to t<e =re?e:t Co:?tAt@tAo:, At A? :ot ?@r=rA?A:G t<Ct EC:B o; t<e ?=ecA;Ac =roHA?Ao:? o; t<e *OA)A"
o: t<e ;orECtAo: C:F =o>er? o; t<e B'E Cre A: co:;DAct >At< t<e Co:?tAt@tAo: C:F t<e DC>?.
*rticle O" Section 3. of the %onstitution provides that @9t:he creation of the autonomous region shall be effective when
approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose" provided that
o:DB =roHA:ce?, cAtAe?, C:F GeoGrC=<Ac CreC? HotA:G ;CHorCbDB A: ?@c< =DebA?cAte ?<CDD be A:cD@FeF A: t<e
C@to:oEo@? reGAo:.@ (mphasis supplied!
*s reflected above" the A=( is more of a state than an autonomous region. Aut even assuming that it is covered by the
term @autonomous region@ in the constitutional provision just Duoted" the M)*#*1 would still be in conflict with it.
Knder paragraph ,c! on 2(00I2)0$ in relation to ,d! and ,e!" the present geographic area of the *0MM and" in
addition" the municipalities of Lanao del 8orte which voted for inclusion in the *0MM during the ,--3 plebiscite #
(aloi# ,unai# !unungan# Pantar# 'agoloan and 'angkal # are automatically part of the A=( without need of another
plebiscite" in contrast to the areas under %ategories * and A mentioned earlier in the overview. 2hat the present
components of the *0MM and the above#mentioned municipalities voted for inclusion therein in ,--3" however" does
:ot render another plebiscite unnecessary under the %onstitution" precisely because what these areas voted for then
was their inclusion in the *0MM" :ot the A=(.
T<e *OA)A", EoreoHer, >o@DF :ot
coE=DB >At< ArtAcDe 4, &ectAo: 20 o;
t<e Co:?tAt@tAo:
since that provision defines the powers of autonomous regions as followsB
S(%2I)8 ,-. Within its territorial jurisdiction and subject to the provisions of this %onstitution and national laws" the
21
organic act of autonomous regions shall provide for legislative powers overB
3! *dministrative organi;ationJ
,! %reation of sources of revenuesJ
?! *ncestral domain and natural resourcesJ
6! Personal" family" and property relationsJ
+! 0egional urban and rural planning developmentJ
<! (conomic" social" and tourism developmentJ
>! (ducational policiesJ
.! Preservation and development of the cultural heritageJ and
5! Such other matters as may be authori;ed by law for the promotion of the general welfare of the people of the
region. Knderscoring supplied!
*gain on the premise that the A=( may be regarded as an autonomous region" the M)*#*1 would reDuire an
amendment that would e'pand the above#Duoted provision. 2he mere passage of new legislation pursuant to sub#
paragraph 8o. 5 of said constitutional provision would not suffice" since any new law that might vest in the A=( the
powers found in the M)*#*1 must" itself" comply with other provisions of the %onstitution. It would not do" for
instance" to merely pass legislation vesting the A=( with treaty#ma&ing power in order to accommodate paragraph 6 of
the strand on 0(S)K0%(S which statesB @2he A=( is free to enter into any economic cooperation and trade relations
with foreign countriesB provided" however" that such relationships and understandings do not include aggression
against the /overnment of the 0epublic of the Philippines ' ' '.@ Knder our constitutional system" it is only the
President who has that power. Pimentel $& *+ecuti$e Secretar"
93++:
instructsB
In our system of government" the President" being the head of state" is regarded as t<e ?oDe orGC: C:F C@t<orAtB A:
e9ter:CD reDCtAo:? C:F A? t<e co@:trBO? ?oDe re=re?e:tCtAHe >At< ;oreAG: :CtAo:?. *s the chief architect of foreign
policy" the President acts as the countryCs mouthpiece with respect to international affairs. 7ence" t<e Pre?AFe:t A?
He?teF >At< t<e C@t<orAtB to deal with foreign states and governments" e'tend or withhold recognition" ECA:tCA:
FA=DoECtAc reDCtAo:?, e:ter A:to treCtAe?, C:F ot<er>A?e trC:?Cct t<e b@?A:e?? o; ;oreAG: reDCtAo:?. : t<e reCDE
o; treCtB)ECLA:G, t<e Pre?AFe:t <C? t<e ?oDe C@t<orAtB to :eGotACte >At< ot<er ?tCte?. (mphasis and
underscoring supplied!
ArtAcDe , &ectAo: 22 o; t<e Co:?tAt@tAo: E@?t CD?o be CEe:FeF A; t<e ?c<eEe e:HA?Ao:eF A: t<e *OA)A" A? to
be e;;ecteF. 2hat constitutional provision statesB @2he State recogni;es and promotes the rights of indigenous cultural
communities within the framewor& of national unity and development.@ Knderscoring supplied! *n associati$e
arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties
between the A=( and the national government" the act of placing a portion of Philippine territory in a status which" in
international practice" has generally been a preparation for independence " is certainly not conducive to :CtAo:CD unity.
Aesides being irreconcilable with the %onstitution" the M)*#*1 is also A:co:?A?te:t >At< =reHCADA:G ?tCt@torB DC>,
CEo:G ><Ac< Cre R.A. No. 905493+<: or the )rganic *ct of the *0MM" and the PRA.
93+>:
ArtAcDe 4, &ectAo: 3 o; t<e OrGC:Ac Act o; t<e AR** A? C bCr to t<e CFo=tAo: o; t<e Fe;A:AtAo: o; JBC:G?CEoro
=eo=DeJ used in the M)*#*1. Paragraph 3 on %oncepts and Principles statesB
3. It is the birthright of CDD *oro? C:F CDD :FAGe:o@? =eo=De? o; *A:FC:Co to AFe:tA;B t<eE?eDHe? C:F be Ccce=teF
C? JBC:G?CEoro?J. 2he Aangsamoro people refers to those who are :CtAHe? or orAGA:CD A:<CbAtC:t? o; *A:FC:Co
C:F At? CFICce:t A?DC:F? including Palawan and the Sulu archipelago at the time of conDuest or coloni;ation of its
descendants whether mi'ed or of full blood. Spouses and their descendants are classified as Aangsamoro. 2he
freedom of choice of the Indigenous people shall be respected. (mphasis and underscoring supplied!
2his use of the term Aangsamoro sharply contrasts with that found in the *rticle O" Section ? of the )rganic *ct" which"
rather than lumping together the identities of the Aangsamoro and other indigenous peoples living in Mindanao" clearly
FA?tA:G@A?<e? bet>ee: BC:G?CEoro =eo=De C:F TrAbCD =eo=De?" as followsB
@*s used in this )rganic *ct" the phrase @indigenous cultural community@ refers to !ADA=A:o cAtAMe:? re?AFA:G A: t<e
C@to:oEo@? reGAo: who areB
a! TrAbCD =eo=De?. 2hese are citi;ens whose social" cultural and economic conditions distinguish them from other
sectors of the national communityJ and
22
b! BC:G?C *oro =eo=De. 2hese are citi;ens who are beDAeHer? A: ?DCE and ><o <CHe retCA:eF ?oEe or CDD o;
t<eAr o>: ?ocACD, eco:oEAc, c@Dt@rCD, C:F =oDAtAcCD A:?tAt@tAo:?.@
0especting the IP0*" it lays down the prevailing procedure for the delineation and recognition of ancestral domains.
2he M)*#*1Cs manner of delineating the ancestral domain of the Aangsamoro people is a clear departure from that
procedure. Ay paragraph 3 of 2erritory" the Parties simply agree that" subject to the delimitations in the agreed
Schedules" @9t:he Aangsamoro homeland and historic territory refer to the land mass as well as the maritime"
terrestrial" fluvial and alluvial domains" and the aerial domain" the atmospheric space above it" embracing the
Mindanao#Sulu#Palawan geographic region.@
%hapter EIII of the IP0*" on the other hand" lays down a detailed procedure" as illustrated in the following provisions
thereofB
S(%2I)8 +,. 1elineation Process. ## 2he identification and delineation of ancestral domains shall be done in
accordance with the following proceduresB
' ' ' '
b! Petition for 1elineation. ## 2he process of delineating a specific perimeter may be initiated by the 8%IP with the
consent of the I%%IIP concerned" or through a Petition for 1elineation filed with the 8%IP" by a majority of the
members of the I%%sIIPsJ
c! 1elineation Proper. ## 2he official delineation of ancestral domain boundaries including census of all community
members therein" shall be immediately underta&en by the *ncestral 1omains )ffice upon filing of the application by
the I%%sIIPs concerned. 1elineation will be done in coordination with the community concerned and shall at all times
include genuine involvement and participation by the members of the communities concernedJ
d! Proof 0eDuired. ## Proof of *ncestral 1omain %laims shall include the testimony of elders or community under oath"
and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial
by such I%%sIIPs in the concept of owners which shall be any one 3! of the following authentic documentsB
3! Written accounts of the I%%sIIPs customs and traditionsJ
,! Written accounts of the I%%sIIPs customs and traditionsJ
?! Pictures showing long term occupation such as those of old improvements" burial grounds" sacred places and
old villagesJ
6! 7istorical accounts" including pacts and agreements concerning boundaries entered into by the I%%sIIPs
concerned with other I%%sIIPsJ
+! Survey plans and s&etch mapsJ
<! *nthropological dataJ
>! /enealogical surveysJ
.! Pictures and descriptive histories of traditional communal forests and hunting groundsJ
5! Pictures and descriptive histories of traditional landmar&s such as mountains" rivers" cree&s" ridges" hills"
terraces and the li&eJ and
3-! Write#ups of names and places derived from the native dialect of the community.
e! Preparation of Maps. ## )n the basis of such investigation and the findings of fact based thereon" the *ncestral
1omains )ffice of the 8%IP shall prepare a perimeter map" complete with technical descriptions" and a description of
the natural features and landmar&s embraced thereinJ
f! 0eport of Investigation and )ther 1ocuments. ## * complete copy of the preliminary census and a report of
investigation" shall be prepared by the *ncestral 1omains )ffice of the 8%IPJ
g! 8otice and Publication. ## * copy of each document" including a translation in the native language of the I%%sIIPs
concerned shall be posted in a prominent place therein for at least fifteen 3+! days. * copy of the document shall also
be posted at the local" provincial and regional offices of the 8%IP" and shall be published in a newspaper of general
circulation once a wee& for two ,! consecutive wee&s to allow other claimants to file opposition thereto within fifteen
3+! days from date of such publicationB Provided" 2hat in areas where no such newspaper e'ists" broadcasting in a
radio station will be a valid substituteB Provided" further" 2hat mere posting shall be deemed sufficient if both
newspaper and radio station are not availableJ
23
h! (ndorsement to 8%IP. ## Within fifteen 3+! days from publication" and of the inspection process" the *ncestral
1omains )ffice shall prepare a report to the 8%IP endorsing a favorable action upon a claim that is deemed to have
sufficient proof. 7owever" if the proof is deemed insufficient" the *ncestral 1omains )ffice shall reDuire the submission
of additional evidenceB Provided" 2hat the *ncestral 1omains )ffice shall reject any claim that is deemed patently false
or fraudulent after inspection and verificationB Provided" further" 2hat in case of rejection" the *ncestral 1omains )ffice
shall give the applicant due notice" copy furnished all concerned" containing the grounds for denial. 2he denial shall be
appealable to the 8%IPB Provided" furthermore" 2hat in cases where there are conflicting claims among I%%sIIPs on
the boundaries of ancestral domain claims" the *ncestral 1omains )ffice shall cause the contending parties to meet
and assist them in coming up with a preliminary resolution of the conflict" without prejudice to its full adjudication
according to the section below.
' ' ' '
2o remove all doubts about the irreconcilability of the M)*#*1 with the present legal system" a discussion of not only
the %onstitution and domestic statutes" but also of international law is in order" for
ArtAcDe , &ectAo: 2 o; t<e Co:?tAt@tAo: ?tCte? t<Ct t<e P<ADA==A:e? JCFo=t? t<e
Ge:erCDDB Ccce=teF =rA:cA=De? o; A:ter:CtAo:CD DC> C? =Crt o; t<e DC> o; t<e DC:F.J
*pplying this provision of the %onstitution" the %ourt" in ,ejoff $& Director of Prisons"93+.: held that the Kniversal
1eclaration of 7uman 0ights is part of the law of the land on account of which it ordered the release on bail of a
detained alien of 0ussian descent whose deportation order had not been e'ecuted even after two years. Similarly" the
%ourt in .gustin $& *du93+5: applied the aforesaid constitutional provision to the 35<. Eienna %onvention on 0oad
Signs and Signals.
International law has long recogni;ed the right to self#determination of @peoples"@ understood not merely as the entire
population of a State but also a portion thereof. In considering the Duestion of whether the people of Puebec had a
right to unilaterally secede from %anada" the %anadian Supreme %ourt in 0(F(0(8%( 0( S(%(SSI)8 )F
PK(A(%93<-: had occasion to ac&nowledge that @the right of a people to self#determination is now so widely
recogni;ed in international conventions that the principle has acDuired a status beyond MconventionC and is considered
a general principle of international law.@
*mong the conventions referred to are the International %ovenant on %ivil and Political 0ights93<3: and the
International %ovenant on (conomic" Social and %ultural 0ights93<,: which state" in *rticle 3 of both covenants" that
all peoples" by virtue of the right of self#determination" @freely determine their political status and freely pursue their
economic" social" and cultural development.@
2he peopleCs right to self#determination should not" however" be understood as e'tending to a unilateral right of
secession. * distinction should be made between the right of internal and e'ternal self#determination. 0(F(0(8%(
0( S(%(SSI)8 )F PK(A(% is again instructiveB
@ii! Scope of the 0ight to Self#determination
3,<. 2he recogni;ed sources of international law establish that the rAG<t to ?eD;)FeterEA:CtAo: o; C =eo=De A?
:orECDDB ;@D;ADDeF t<ro@G< internal ?eD;)FeterEA:CtAo: ) C =eo=DeO? =@r?@At o; At? =oDAtAcCD, eco:oEAc, ?ocACD C:F
c@Dt@rCD FeHeDo=Ee:t >At<A: t<e ;rCEe>orL o; C: e9A?tA:G ?tCte. A rAG<t to external ?eD;)FeterEA:CtAo: .><Ac< A:
t<A? cC?e =ote:tACDDB tCLe? t<e ;orE o; t<e C??ertAo: o; C rAG<t to @:ADCterCD ?ece??Ao:/ CrA?e? A: o:DB t<e Eo?t
e9treEe o; cC?e? C:F, eHe: t<e:, @:Fer cCre;@DDB Fe;A:eF cArc@E?tC:ce?. ' ' '
External ?eD;)FeterEA:CtAo: cC: be Fe;A:eF C? A: t<e ;oDDo>A:G ?tCteEe:t ;roE t<e Declaration on riendly
!elations, supra, C?
T<e e?tCbDA?<Ee:t o; C ?oHereAG: C:F A:Fe=e:Fe:t &tCte, t<e ;ree C??ocACtAo: or A:teGrCtAo: >At< C:
A:Fe=e:Fe:t &tCte or t<e eEerGe:ce A:to C:B ot<er =oDAtAcCD ?tCt@? ;reeDB FeterEA:eF bB C people constitute
24
modes of implementing the right of self#determination by that people. (mphasis added!
3,>. T<e A:ter:CtAo:CD DC> =rA:cA=De o; ?eD;)FeterEA:CtAo: <C? eHoDHeF >At<A: C ;rCEe>orL o; re?=ect ;or t<e
terrAtorACD A:teGrAtB o; e9A?tA:G ?tCte?. 2he various international documents that support the e'istence of a peopleCs
right to self#determination also contain parallel statements supportive of the conclusion that the e'ercise of such a right
must be sufficiently limited to prevent threats to an e'isting stateCs territorial integrity or the stability of relations
between sovereign states.
' ' ' ' (mphasis" italics and underscoring supplied!
2he %anadian %ourt went on to discuss the e'ceptional cases in which the right to e+ternal self#determination can
arise" namely" where a people is under colonial rule" is subject to foreign domination or e'ploitation outside a colonial
conte't" and # less definitely but asserted by a number of commentators # is bloc&ed from the meaningful e'ercise of its
right to internal self#determination. 2he %ourt ultimately held that the population of Puebec had no right to secession"
as the same is not under colonial rule or foreign domination" nor is it being deprived of the freedom to ma&e political
choices and pursue economic" social and cultural development" citing that Puebec is eDuitably represented in
legislative" e'ecutive and judicial institutions within %anada" even occupying prominent positions therein.
2he e'ceptional nature of the right of secession is further e'emplified in the 0(P)02 )F 27( I82(08*2I)8*L
%)MMI22(( )F =K0IS2S )8 27( L(/*L *SP(%2S )F 27( **L*81 ISL*81S PK(S2I)8.93<?: 2here" Sweden
presented to the %ouncil of the League of 8ations the Duestion of whether the inhabitants of the *aland Islands should
be authori;ed to determine by plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated
in the &ingdom of Sweden. 2he %ouncil" before resolving the Duestion" appointed an International %ommittee
composed of three jurists to submit an opinion on the preliminary issue of whether the dispute should" based on
international law" be entirely left to the domestic jurisdiction of Finland. 2he %ommittee stated the rule as followsB
' ' ' 9I:n the absence of e'press provisions in international treaties" t<e rAG<t o; FA?=o?A:G o; :CtAo:CD terrAtorB A?
e??e:tACDDB C: CttrAb@te o; t<e ?oHereAG:tB o; eHerB &tCte. Po?AtAHe :ter:CtAo:CD $C> Foe? :ot recoG:AMe t<e
rAG<t o; :CtAo:CD Gro@=?, C? ?@c<, to ?e=CrCte t<eE?eDHe? ;roE t<e &tCte o; ><Ac< t<eB ;orE =Crt bB t<e ?AE=De
e9=re??Ao: o; C >A?<" any more than it recogni;es the right of other States to claim such a separation. Ge:erCDDB
?=eCLA:G, t<e GrC:t or re;@?CD o; t<e rAG<t to C =ortAo: o; At? =o=@DCtAo: o; FeterEA:A:G At? o>: =oDAtAcCD ;Cte bB
=DebA?cAte or bB ?oEe ot<er Eet<oF, A?, e9cD@?AHeDB, C: CttrAb@te o; t<e ?oHereAG:tB o; eHerB &tCte ><Ac< A?
Fe;A:AtAHeDB co:?tAt@teF. * dispute between two States concerning such a Duestion" under normal conditions
therefore" bears upon a Duestion which International Law leaves entirely to the domestic jurisdiction of one of the
States concerned. *ny other solution would amount to an infringement of sovereign rights of a State and would involve
the ris& of creating difficulties and a lac& of stability which would not only be contrary to the very idea embodied in term
@State"@ but would also endanger the interests of the international community. If this right is not possessed by a large
or small section of a nation" neither can it be held by the State to which the national group wishes to be attached" nor
by any other State. (mphasis and underscoring supplied!
2he %ommittee held that the dispute concerning the *aland Islands did not refer to a Duestion which is left by
international law to the domestic jurisdiction of Finland" thereby applying the e'ception rather than the rule elucidated
above. Its ground for departing from the general rule" however" was a very narrow one" namely" the *aland Islands
agitation originated at a time when Finland was undergoing drastic political transformation. 2he internal situation of
Finland was" according to the %ommittee" so abnormal that" for a considerable time" the conditions reDuired for the
formation of a sovereign State did not e'ist. In the midst of revolution" anarchy" and civil war" the legitimacy of the
Finnish national government was disputed by a large section of the people" and it had" in fact" been chased from the
capital and forcibly prevented from carrying out its duties. 2he armed camps and the police were divided into two
opposing forces. In light of these circumstances" Finland was not" during the relevant time period" a @definitively
constituted@ sovereign state. 2he %ommittee" therefore" found that Finland did not possess the right to withhold from a
portion of its population the option to separate itself # a right which sovereign nations generally have with respect to
their own populations.
2urning now to the more specific category of indigenous peoples" this term has been used" in scholarship as well as
international" regional" and state practices" to refer to groups with distinct cultures" histories" and connections to land
spiritual and otherwise! that have been forcibly incorporated into a larger governing society. 2hese groups are
25
regarded as @indigenous@ since they are the living descendants of pre#invasion inhabitants of lands now dominated by
others. )therwise stated" indigenous peoples" nations" or communities are culturally distinctive groups that find
themselves engulfed by settler societies born of the forces of empire and conDuest.
93<6:
('amples of groups who have
been regarded as indigenous peoples are the Maori of 8ew Healand and the aboriginal peoples of %anada.
*s with the broader category of @peoples"@ indigenous peoples situated within states do not have a general right to
independence or secession from those states under international law"
93<+:
but they do have rights amounting to what
was discussed above as the right to A:ter:CD self#determination.
In a historic development last September 3?" ,-->" the K8 /eneral *ssembly adopted the Knited 8ations 1eclaration
on the 0ights of Indigenous Peoples K8 10IP! through /eneral *ssembly 0esolution <3I,5+. 2he vote was 36? to 6"
the Philippines being included among those in favor" and the four voting against being *ustralia" %anada" 8ew
Healand" and the K.S. 2he 1eclaration clearly recogni;ed the right of indigenous peoples to self#determination"
encompassing the right to autonomy or self#government" to witB
ArtAcDe 3
Indigenous peoples have the right to ?eD;)FeterEA:CtAo:. Ay virtue of that right they freely determine their political
status and freely pursue their economic" social and cultural development.
ArtAcDe 4
Indigenous peoples" in e'ercising their right to self#determination" have t<e rAG<t to C@to:oEB or ?eD;)GoHer:Ee:t A:
ECtter? reDCtA:G to t<eAr A:ter:CD C:F DocCD C;;CAr?" as well as ways and means for financing their autonomous
functions.
ArtAcDe 5
Indigenous peoples have the right to maintain and strengthen their distinct political" legal" economic" social and cultural
institutions" while retaining their right to participate fully" if they so choose" in the political" economic" social and cultural
life of the State.
Self#government" as used in international legal discourse pertaining to indigenous peoples" has been understood as
eDuivalent to @internal self#determination.@93<<: 2he e'tent of self#determination provided for in the K8 10IP is more
particularly defined in its subseDuent articles" some of which are Duoted hereunderB
ArtAcDe 8
3. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of
their culture.
,. &tCte? ?<CDD =roHAFe e;;ectAHe Eec<C:A?E? ;or =reHe:tAo: o;, C:F reFre?? ;or8
a! A:B CctAo: ><Ac< <C? t<e CAE or e;;ect o; Fe=rAHA:G t<eE o; t<eAr A:teGrAtB C? FA?tA:ct =eo=De?, or o;
t<eAr c@Dt@rCD HCD@e? or et<:Ac AFe:tAtAe?3
b! A:B CctAo: ><Ac< <C? t<e CAE or e;;ect o; FA?=o??e??A:G t<eE o; t<eAr DC:F?, terrAtorAe? or
re?o@rce?3
c! A:B ;orE o; ;orceF =o=@DCtAo: trC:?;er ><Ac< <C? t<e CAE or e;;ect o; HAoDCtA:G or @:FerEA:A:G C:B
o; t<eAr rAG<t?3
d! *ny form of forced assimilation or integrationJ
e! A:B ;orE o; =ro=CGC:FC Fe?AG:eF to =roEote or A:cAte rCcACD or et<:Ac FA?crAEA:CtAo: FArecteF
26
CGCA:?t t<eE.
ArtAcDe 21
3. Indigenous peoples have the right" without discrimination" to the improvement of their economic and social
conditions" including" inter alia" in the areas of education" employment" vocational training and retraining"
housing" sanitation" health and social security.
,. States shall ta&e effective measures and" where appropriate" special measures to ensure continuing
improvement of their economic and social conditions. Particular attention shall be paid to the rights and
special needs of indigenous elders" women" youth" children and persons with disabilities.
ArtAcDe 25
1. :FAGe:o@? =eo=De? <CHe t<e rAG<t to t<e DC:F?, terrAtorAe? C:F re?o@rce? ><Ac< t<eB <CHe trCFAtAo:CDDB
o>:eF, occ@=AeF or ot<er>A?e @?eF or CcK@AreF.
,. Indigenous peoples have the right to own" use" develop and control the lands" territories and resources that
they possess by reason of traditional ownership or other traditional occupation or use" as well as those which
they have otherwise acDuired.
?. States shall give legal recognition and protection to these lands" territories and resources. Such recognition
shall be conducted with due respect to the customs" traditions and land tenure systems of the indigenous
peoples concerned.
ArtAcDe 30
3. Military activities shall not ta&e place in the lands or territories of indigenous peoples" unless justified by a
relevant public interest or otherwise freely agreed with or reDuested by the indigenous peoples concerned.
,. States shall underta&e effective consultations with the indigenous peoples concerned" through appropriate
procedures and in particular through their representative institutions" prior to using their lands or territories for
military activities.
ArtAcDe 32
3. Indigenous peoples have the right to determine and develop priorities and strategies for the development or
use of their lands or territories and other resources.
,. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own
representative institutions in order to obtain their free and informed consent prior to the approval of any
project affecting their lands or territories and other resources" particularly in connection with the development"
utili;ation or e'ploitation of mineral" water or other resources.
?. States shall provide effective mechanisms for just and fair redress for any such activities" and appropriate
measures shall be ta&en to mitigate adverse environmental" economic" social" cultural or spiritual impact.
ArtAcDe 31
3. Indigenous peoples have the right to the recognition" observance and enforcement of treaties" agreements
and other constructive arrangements concluded with States or their successors and to have States honour
and respect such treaties" agreements and other constructive arrangements.
,. 8othing in this 1eclaration may be interpreted as diminishing or eliminating the rights of indigenous peoples
contained in treaties" agreements and other constructive arrangements.
ArtAcDe 38
27
States in consultation and cooperation with indigenous peoples" shall ta&e the appropriate measures" including
legislative measures" to achieve the ends of this 1eclaration.
*ssuming that the K8 10IP" li&e the Kniversal 1eclaration on 7uman 0ights" must now be regarded as embodying
customary international law # a Duestion which the %ourt need not definitively resolve here # the obligations
enumerated therein do not strictly reDuire the 0epublic to grant the Aangsamoro people" through the instrumentality of
the A=(" the particular rights and powers provided for in the M)*#*1. (ven the more specific provisions of the K8
10IP are general in scope" allowing for fle'ibility in its application by the different States.
2here is" for instance" no reDuirement in the K8 10IP that States now guarantee indigenous peoples their own police
and internal security force. Indeed" *rticle . presupposes that it is the State which will provide protection for indigenous
peoples against acts li&e the forced dispossession of their lands # a function that is normally performed by police
officers. If the protection of a right so essential to indigenous peopleCs identity is ac&nowledged to be the responsibility
of the State" then surely the protection of rights less significant to them as such peoples would also be the duty of
States. 8or is there in the K8 10IP an ac&nowledgement of the right of indigenous peoples to the aerial domain and
atmospheric space. What it upholds" in *rticle ,< thereof" is the right of indigenous peoples to the lands" territories and
resources which they have traditionally owned" occupied or otherwise used or acDuired.
Moreover" the K8 10IP" while upholding the right of indigenous peoples to autonomy" does not obligate States to
grant indigenous peoples the near#independent status of an associated state. *ll the rights recogni;ed in that
document are Dualified in *rticle 6< as followsB
3. Not<A:G A: t<A? "ecDCrCtAo: ECB be interpreted as implying for any State" people" group or person any right
to engage in any activity or to perform any act contrary to the %harter of the Knited 8ations or co:?tr@eF C?
C@t<orAMA:G or e:co@rCGA:G C:B CctAo: ><Ac< >o@DF FA?EeEber or AE=CAr, totCDDB or A: =Crt, t<e
terrAtorACD A:teGrAtB or =oDAtAcCD @:AtB o; ?oHereAG: C:F A:Fe=e:Fe:t &tCte?.
(ven if the K8 10IP were considered as part of the law of the land pursuant to *rticle II" Section , of the %onstitution"
it would not suffice to uphold the validity of the M)*#*1 so as to render its compliance with other laws unnecessary.
t A?, t<ere;ore, cDeCr t<Ct t<e *OA)A" co:tCA:? :@Eero@? =roHA?Ao:? t<Ct cC::ot be reco:cADeF >At< t<e
Co:?tAt@tAo: C:F t<e DC>? C? =re?e:tDB >orFeF. 0espondents proffer" however" that the signing of the M)*#*1
alone would not have entailed any violation of law or grave abuse of discretion on their part" precisely because it
stipulates that the provisions thereof inconsistent with the laws shall not ta&e effect until these laws are amended. 2hey
cite paragraph > of the M)*#*1 strand on /)E(08*8%( Duoted earlier" but which is reproduced below for
convenienceB
>. 2he Parties agree that the mechanisms and modalities for the actual implementation of this M)*#*1 shall be spelt
out in the %omprehensive %ompact to mutually ta&e such steps to enable it to occur effectively.
*ny provisions of the M)*#*1 reDuiring amendments to the e'isting legal framewor& shall come into force upon
signing of a %omprehensive %ompact and upon effecting the necessary changes to the legal framewor& with due
regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the
%omprehensive %ompact.
Indeed" the foregoing stipulation &eeps many controversial provisions of the M)*#*1 from coming into force until the
necessary changes to the legal framewor& are effected. -<ADe t<e >orF JCo:?tAt@tAo:J A? :ot Ee:tAo:eF A: t<e
=roHA?Ao: :o> @:Fer co:?AFerCtAo: or C:B><ere eD?e A: t<e *OA)A", t<e terE JDeGCD ;rCEe>orLJ A? certCA:DB
broCF e:o@G< to A:cD@Fe t<e Co:?tAt@tAo:.
8otwithstanding the suspensive clause" however" respondents" by their mere act of incorporating in the M)*#*1 the
provisions thereof regarding the associative relationship between the A=( and the %entral /overnment" have already
violated the Memorandum of Instructions From 2he President dated March 3" ,--3" which states that the @negotiations
shall be conducted in accordance with ' ' ' the principles of the sovereignty and terrAtorACD A:teGrAtB of the 0epublic of
the Philippines.@ (mphasis supplied! (stablishing an associative relationship between the A=( and the %entral
/overnment is" for the reasons already discussed" a preparation for independence" or worse" an implicit
ac&nowledgment of an independent status already prevailing.
28
(ven apart from the above#mentioned Memorandum" however" the M)*#*1 is defective because the suspensive
clause is invalid" as discussed below.
2he authority of the /0P Peace 8egotiating Panel to negotiate with the MILF is founded on (.). 8o. ?" Section +c!"
which states that there shall be established /overnment Peace 8egotiating Panels for negotiations with different rebel
groups to be @appointed by the President as her official emissaries to conduct negotiations" dialogues" and face#to#face
discussions with rebel groups.@ 2hese negotiating panels are to report to the President" through the P*PP on the
conduct and progress of the negotiations.
It bears noting that the /0P Peace Panel" in e'ploring lasting solutions to the Moro Problem through its negotiations
with the MILF" was not restricted by (.). 8o. ? only to those options available under the laws as they presently stand.
)ne of the components of a comprehensive peace process" which (.). 8o. ? collectively refers to as the @Paths to
Peace"@ is the pursuit of social" economic" and political reforms which may reDuire new legislation or even
constitutional amendments. Sec. 6a! of (.). 8o. ?" which reiterates Section ?a!" of (.). 8o. 3,+"
93<>:
statesB
S(%2I)8 6. 2he Si' Paths to Peace. # 2he components of the comprehensive peace process comprise the processes
&nown as the @Paths to Peace@. 2hese component processes are interrelated and not mutually e'clusive" and must
therefore be pursued simultaneously in a coordinated and integrated fashion. 2hey shall include" but may not be
limited to" the followingB
a. PK0SKI2 )F S)%I*L" (%)8)MI% *81 P)LI2I%*L 0(F)0MS. 2his component involves the HAGoro@?
AE=DeEe:tCtAo: o; HCrAo@? =oDAcAe?, re;orE?, =roGrCE? C:F =roIect? CAEeF Ct CFFre??A:G t<e root
cC@?e? o; A:ter:CD CrEeF co:;DAct? C:F ?ocACD @:re?t. T<A? ECB reK@Are CFEA:A?trCtAHe CctAo:, :e>
DeGA?DCtAo: or eHe: co:?tAt@tAo:CD CEe:FEe:t?.
' ' ' ' (mphasis supplied!
2he M)*#*1" therefore" may reasonably be perceived as an attempt of respondents to address" pursuant to this
provision of (.). 8o. ?" the root causes of the armed conflict in Mindanao. 2he (.). authori;ed them to @thin& outside
the bo'"@ so to spea&. 7ence" they negotiated and were set on signing the M)*#*1 that included various social"
economic" and political reforms which cannot" however" all be accommodated within the present legal framewor&" and
which thus would reDuire new legislation and constitutional amendments.
2he inDuiry on the legality of the @suspensive clause"@ however" cannot stop here" because it must be as&ed
><et<er t<e Pre?AFe:t <er?eD; ECB e9ercA?e t<e =o>er FeDeGCteF to t<e GRP PeCce PC:eD @:Fer E.O. No. 3,
&ec. 4.C/.
2he President cannot delegate a power that she herself does not possess. May the President" in the course of peace
negotiations" agree to pursue reforms that would reDuire new legislation and constitutional amendments" or should the
reforms be restricted only to those solutions which the present laws allowN 2he answer to this Duestion reDuires a
discussion of
t<e e9te:t o; t<e Pre?AFe:tO? =o>er to co:F@ct =eCce :eGotACtAo:?.
2hat the authority of the President to conduct peace negotiations with rebel groups is not e'plicitly mentioned in the
%onstitution does not mean that she has no such authority. In Sanlakas $& *+ecuti$e Secretar""
93<.:
in issue was the
authority of the President to declare a state of rebellion # an authority which is not e'pressly provided for in the
%onstitution. 2he %ourt held thusB
@In her ponencia in ,arcos $& ,anglapus" =ustice %ortes put her thesis into jurisprudence. 2here" the %ourt" by a slim
.#> margin" upheld the PresidentCs power to forbid the return of her e'iled predecessor. 2he rationale for the majorityCs
ruling rested on the PresidentCs
. . . @:?tCteF re?AF@CD =o>er? ><Ac< Cre AE=DAeF ;roE t<e GrC:t o; e9ec@tAHe =o>er C:F ><Ac< Cre :ece??CrB ;or
<er to coE=DB >At< <er F@tAe? @:Fer t<e Co:?tAt@tAo:. T<e =o>er? o; t<e Pre?AFe:t Cre :ot DAEAteF to ><Ct Cre
e9=re??DB e:@EerCteF A: t<e CrtAcDe o: t<e E9ec@tAHe "e=CrtEe:t C:F A: ?cCttereF =roHA?Ao:? o; t<e
29
Co:?tAt@tAo:. 2his is so" notwithstanding the avowed intent of the members of the %onstitutional %ommission of 35.<
to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos" for the result was a
limitation of specific powers of the President" particularly those relating to the commander#in#chief clause" but not a
diminution of the general grant of e'ecutive power.
2hus" t<e Pre?AFe:tO? C@t<orAtB to FecDCre C ?tCte o; rebeDDAo: ?=rA:G? A: t<e ECA: ;roE <er =o>er? C? c<Ae;
e9ec@tAHe C:F, Ct t<e ?CEe tAEe, FrC>? ?tre:Gt< ;roE <er CoEEC:Fer)A:)C<Ae; =o>er?. ' ' ' (mphasis and
underscoring supplied!
Similarly" the PresidentCs power to conduct peace negotiations is implicitly included in her powers as %hief ('ecutive
and %ommander#in#%hief. *s %hief ('ecutive" the President has the general responsibility to promote public peace"
and as %ommander#in#%hief" she has the more specific duty to prevent and suppress rebellion and lawless violence.
93<5:
*s the e'perience of nations which have similarly gone through internal armed conflict will show" however" peace is
rarely attained by simply pursuing a military solution. )ftentimes" changes as far#reaching as a fundamental
reconfiguration of the nationCs constitutional structure is reDuired. 2he observations of 1r. 4irsti Samuels are
enlightening" to witB
' ' ' 92:he fact remains that a successful political and governance transition must form the core of any post#conflict
peace#building mission. *s we have observed in Liberia and 7aiti over the last ten years" conflict cessation without
modification of the political environment" even where state#building is underta&en through technical electoral
assistance and institution# or capacity#building" is unli&ely to succeed. )n average" more than +- percent of states
emerging from conflict return to conflict. Moreover" a substantial proportion of transitions have resulted in wea& or
limited democracies.
2he design of a constitution and its constitution#ma&ing process can play an important role in the political and
governance transition. %onstitution#ma&ing after conflict is an opportunity to create a common vision of the future of a
state and a road map on how to get there. 2he constitution can be partly a peace agreement and partly a framewor&
setting up the rules by which the new democracy will operate.
93>-:
In the same vein" Professor %hristine Aell" in her article on the nature and legal status of peace agreements" observed
that the typical way that peace agreements establish or confirm mechanisms for demilitari;ation and demobili;ation is
by lin&ing them to :e> co:?tAt@tAo:CD ?tr@ct@re? addressing governance" elections" and legal and human rights
institutions.
93>3:
In the Philippine e'perience" the lin& between peace agreements and constitution#ma&ing has been recogni;ed by no
less than the framers of the %onstitution. Aehind the provisions of the %onstitution on autonomous regions
93>,:
is the
framersC intention to implement a particular peace agreement" namely" the 2ripoli *greement of 35>< between the
/0P and the M8LF" signed by then Kndersecretary of 8ational 1efense %armelo H. Aarbero and then M8LF
%hairman 8ur Misuari.
M0. 0)MKL). 2here are other spea&ersJ so" although I have some more Duestions" I will reserve my right to as& them
if they are not covered by the other spea&ers. I have only two Duestions.
<eCrF o:e o; t<e CoEEA??Ao:er? ?CB t<Ct DocCD C@to:oEB CDreCFB e9A?t? A: t<e *@?DAE reGAo:J it is wor&ing
very wellJ it has" in fact" diminished a great deal of the problems. So" my Duestion isB ?A:ce t<Ct CDreCFB e9A?t?, ><B
Fo >e <CHe to Go A:to ?oEet<A:G :e>N
M0. )PL(. May I answer that on behalf of %hairman 8olledo. %ommissioner $usup *buba&ar is right that certCA:
Fe;A:Ate ?te=? <CHe bee: tCLe: to AE=DeEe:t t<e =roHA?Ao:? o; t<e TrA=oDA AGreeEe:t >At< re?=ect to C:
C@to:oEo@? reGAo: A: *A:FC:Co . T<A? A? C GooF ;Ar?t ?te=, b@t t<ere A? :o K@e?tAo: t<Ct t<A? A? EereDB C =CrtACD
re?=o:?e to t<e TrA=oDA AGreeEe:t At?eD; C:F to t<e ;@DDer ?tC:FCrF o; reGAo:CD C@to:oEB co:teE=DCteF A: t<Ct
CGreeEe:t, C:F :o> bB ?tCte =oDAcB.
93>?:
(mphasis supplied!
2he constitutional provisions on autonomy and the statutes enacted pursuant to them have" to the credit of their
drafters" been partly successful. 8onetheless" the Filipino people are still faced with the reality of an on#going conflict
between the /overnment and the MILF. If the President is to be e'pected to find means for bringing this conflict to an
30
end and to achieve lasting peace in Mindanao" then she must be given the leeway to e'plore" in the course of peace
negotiations" solutions that may reDuire changes to the %onstitution for their implementation. Aeing uniDuely vested
with the power to conduct peace negotiations with rebel groups" the President is in a singular position to &now the
precise nature of their grievances which" if resolved" may bring an end to hostilities.
2he President may not" of course" unilaterally implement the solutions that she considers viable" but she may not be
prevented from submitting them as recommendations to %ongress" which could then" if it is minded" act upon them
pursuant to the legal procedures for constitutional amendment and revision. In particular" %ongress would have the
option" pursuant to *rticle OEII" Sections 3 and ? of the %onstitution" to propose the recommended amendments or
revision to the people" call a constitutional convention" or submit to the electorate the Duestion of calling such a
convention.
While the President does not possess constituent powers # as those powers may be e'ercised only by %ongress" a
%onstitutional %onvention" or the people through initiative and referendum # she may submit proposals for
constitutional change to %ongress in a manner that does not involve the arrogation of constituent powers.
In Sanidad $& 5-,*0*5"93>6: in issue was the legality of then President MarcosC act of directly submitting proposals
for constitutional amendments to a referendum" bypassing the interim 8ational *ssembly which was the body vested
by the 35>? %onstitution with the power to propose such amendments. President Marcos" it will be recalled" never
convened the interim 8ational *ssembly. 2he majority upheld the PresidentCs act" holding that @the urges of absolute
necessity@ compelled the President as the agent of the people to act as he did" there being no interim 8ational
*ssembly to propose constitutional amendments. *gainst this ruling" =ustices 2eehan&ee and MuFGo; Palma
vigorously dissented. 2he %ourtCs concern at present" however" is not with regard to the point on which it was then
divided in that controversial case" but on that which was not disputed by either side.
=ustice 2eehan&eeCs dissent"93>+: in particular" bears noting. While he disagreed that the President may directly
submit proposed constitutional amendments to a referendum" implicit in his opinion is a recognition that he would have
upheld the PresidentCs action along with the majority had the President convened the interim 8ational *ssembly and
coursed his proposals through it. 2hus =ustice 2eehan&ee opinedB
@Since the %onstitution provides for the organi;ation of the essential departments of government" defines and delimits
the powers of each and prescribes the manner of the e'ercise of such powers" and the constituent power has not been
granted to but has been withheld from the President or Prime Minister" it follows that the PresidentCs Duestioned
decrees proposing and submitting constitutional amendments directly to the people .>At<o@t t<e A:terHe:tAo: o; t<e
A:terAE NCtAo:CD A??eEbDB A: ><oE t<e =o>er A? e9=re??DB He?teF/ are devoid of constitutional and legal
basis.@
93><:
(mphasis supplied!
From the foregoing discussion" the principle may be inferred that the President # in the course of conducting peace
negotiations # may validly consider implementing even those policies that reDuire changes to the %onstitution" but she
may :ot unilaterally implement them >At<o@t t<e A:terHe:tAo: o; Co:Gre??, or Cct A: C:B >CB C? A; t<e C??e:t o;
t<Ct boFB >ere C??@EeF C? C certCA:tB.
Since" under the present %onstitution" the people also have the power to directly propose amendments through
initiative and referendum" the President may also submit her recommendations to the people" not as a formal proposal
to be voted on in a plebiscite similar to what President Marcos did in Sanidad" but for their independent consideration
of whether these recommendations merit being formally proposed through initiative.
2hese recommendations" however" may amount to nothing more than the PresidentCs suggestions to the people" for
any further involvement in the process of initiative by the %hief ('ecutive may vitiate its character as a genuine
@peopleCs initiative.@ 2he only initiative recogni;ed by the %onstitution is that which truly proceeds from the people. *s
the %ourt stated in 0ambino $& 5-,*0*5B
93>>:
@2he Lambino /roup claims that their initiative is the MpeopleCs voice.C 7owever" the Lambino /roup unabashedly
states in KL*P 0esolution 8o. ,--<#-," in the verification of their petition with the %)M(L(%" that MKL*P maintains its
unDualified support to the agenda of 7er ('cellency President /loria Macapagal#*rroyo for constitutional reforms.C 2he
Lambino /roup thus CFEAt? that their MpeopleCsC initiative is an M@:K@CDA;AeF ?@==ort to t<e CGe:FCO of the incumbent
31
President to change the %onstitution. 2his forewarns the %ourt to be wary of incantations of MpeopleCs voiceC or
Msovereign willC in the present initiative.@
It will be observed that the President has authority" as stated in her oath of office"
93>.:
only to preserve and defend the
%onstitution. Such presidential power does not" however" e'tend to allowing her to change the %onstitution" but simply
to recommend proposed amendments or revision. *s long as she limits herself to recommending these changes and
submits to the proper procedure for constitutional amendments and revision" her mere recommendation need not be
construed as an unconstitutional act.
2he foregoing discussion focused on the PresidentCs authority to propose co:?tAt@tAo:CD amendments" since her
authority to propose new DeGA?DCtAo: is not in controversy. It has been an accepted practice for Presidents in this
jurisdiction to propose new legislation. )ne of the more prominent instances the practice is usually done is in the
yearly State of the 8ation *ddress of the President to %ongress. Moreover" the annual general appropriations bill has
always been based on the budget prepared by the President" which # for all intents and purposes # is a proposal for
new legislation coming from the President.
93>5:
T<e J?@?=e:?AHe cDC@?eJ A: t<e *OA)A" HAe>eF A: DAG<t o; t<e CboHe)FA?c@??eF
?tC:FCrF?
/iven the limited nature of the PresidentCs authority to propose constitutional amendments" she cC::ot G@CrC:tee to
any third party that the reDuired amendments will eventually be put in place" nor even be submitted to a plebiscite. 2he
most she could do is submit these proposals as recommendations either to %ongress or the people" in whom
constituent powers are vested.
Paragraph > on /overnance of the M)*#*1 states" however" that all provisions thereof which cannot be reconciled
with the present %onstitution and laws @shall come into force upon signing of a %omprehensive %ompact and upon
effecting the necessary changes to the legal framewor&.@ 2his stipulation does not bear the mar&s of a suspensive
condition # defined in civil law as a future and uncertain event # but of a term. It is not a Duestion of ><et<er the
necessary changes to the legal framewor& will be effected" but ><e:. 2hat there is no uncertainty being contemplated
is plain from what follows" for the paragraph goes on to state that the contemplated changes shall be @with due regard
to non derogation of prior agreements and within the stipulated timeframe to be contained in the %omprehensive
%ompact.@
Pursuant to this stipulation" therefore" it is EC:FCtorB for the /0P to effect the changes to the legal framewor&
contemplated in the M)*#*1 # which changes would include constitutional amendments" as discussed earlier. It bears
noting that"
BB t<e tAEe t<e?e c<C:Ge? Cre =@t A: =DCce, t<e *OA)A" At?eD; >o@DF be co@:teF
CEo:G t<e J=rAor CGreeEe:t?J ;roE ><Ac< t<ere co@DF be :o FeroGCtAo:.
What remains for discussion in the %omprehensive %ompact would merely be the implementing details for these
@consensus points@ and" notably" the deadline for effecting the contemplated changes to the legal framewor&.
Plainly" stipulation#paragraph > on /)E(08*8%( is A:co:?A?te:t >At< t<e DAEAt? o; t<e Pre?AFe:tO? C@t<orAtB to
=ro=o?e co:?tAt@tAo:CD CEe:FEe:t?" it being a virtual guarantee that the %onstitution and the laws of the 0epublic
of the Philippines will certainly be adjusted to conform to all the @consensus points@ found in the M)*#*1. 7ence" it
must be struc& down as @:co:?tAt@tAo:CD .
* comparison between the @suspensive clause@ of the M)*#*1 with a similar provision appearing in the 355< final
peace agreement between the M8LF and the /0P is most instructive.
*s a bac&drop" the parties to the 355< *greement stipulated that it would be implemented in two phases. P<C?e
covered a three#year transitional period involving the putting up of new administrative structures through ('ecutive
)rder" such as the Special Hone of Peace and 1evelopment SH)P*1! and the Southern Philippines %ouncil for
32
Peace and 1evelopment SP%P1!" while P<C?e covered the establishment of the new regional autonomous
government through amendment or repeal of 0.*. 8o. <>?6" which was then the )rganic *ct of the *0MM.
2he stipulations on Phase II consisted of specific agreements on the structure of the e'panded autonomous region
envisioned by the parties. 2o that e'tent" they are similar to the provisions of the M)*#*1. 2here is" however" a crucial
difference between the two agreements. While the M)*#*1 HArt@CDDB G@CrC:tee? t<Ct t<e J:ece??CrB c<C:Ge? to
t<e DeGCD ;rCEe>orLJ >ADD be =@t A: =DCce" the /0P#M8LF final peace agreement states thusB @*ccordingly" these
provisions 9on Phase II: shall be recoEEe:FeF by the /0P to %ongress for incorporation in the amendatory or
repealing law.@
%oncerns have been raised that the M)*#*1 would have given rise to a binding international law obligation on the
part of the Philippines to change its %onstitution in conformity thereto" on the ground that it may be considered either
as a binding agreement under international law" or a unilateral declaration of the Philippine government to the
international community that it would grant to the Aangsamoro people all the concessions therein stated. 8either
ground finds sufficient support in international law" however.
2he M)*#*1" as earlier mentioned in the overview thereof" would have included foreign dignitaries as signatories. In
addition" representatives of other nations were invited to witness its signing in 4uala Lumpur. 2hese circumstances
readily lead one to surmise that the M)*#*1 would have had the status of a binding international agreement had it
been signed. *n e'amination of the prevailing principles in international law" however" leads to the contrary conclusion.
2he 1ecision on %hallenge to =urisdictionB LomFQ *ccord *mnesty93.-: the LomFQ *ccord case! of the Special
%ourt of Sierra Leone is enlightening. 2he LomFQ *ccord was a peace agreement signed on =uly >" 3555 between the
/overnment of Sierra Leone and the 0evolutionary Knited Front 0KF!" a rebel group with which the Sierra Leone
/overnment had been in armed conflict for around eight years at the time of signing. 2here were non#contracting
signatories to the agreement" among which were the /overnment of the 2ogolese 0epublic" the (conomic %ommunity
of West *frican States" and the K8.
)n =anuary 3<" ,--," after a successful negotiation between the K8 Secretary#/eneral and the Sierra Leone
/overnment" another agreement was entered into by the K8 and that /overnment whereby the Special %ourt of
Sierra Leone was established. 2he sole purpose of the Special %ourt" an international court" was to try persons who
bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since 8ovember ?-" 355<.
*mong the stipulations of the LomFQ *ccord was a provision for the full pardon of the members of the 0KF with
respect to anything done by them in pursuit of their objectives as members of that organi;ation since the conflict
began.
In the LomFQ *ccord case" the 1efence argued that the *ccord created an A:ter:CtAo:CDDB bA:FA:G obligation not to
prosecute the beneficiaries of the amnesty provided therein" citing" among other things" the participation of foreign
dignitaries and international organi;ations in the finali;ation of that agreement. 2he Special %ourt" however" rejected
this argument" ruling that the Lome *ccord is not a treaty and that it can only create binding obligations and rights
between the parties in municipal law" not in international law. 7ence" the Special %ourt held" it is ineffective in
depriving an international court li&e it of jurisdiction.
@?>. In regard to the nature of a negotiated settlement of an internal armed conflict At A? eC?B to C??@Ee C:F to
CrG@e >At< ?oEe FeGree o; =DC@?AbADAtB, C? "e;e:ce co@:?eD ;or t<e Fe;e:FC:t? ?eeE to <CHe Fo:e, t<Ct
t<e Eere ;Cct t<Ct A: CFFAtAo: to t<e =CrtAe? to t<e co:;DAct, t<e Foc@Ee:t ;orECDAMA:G t<e ?ettDeEe:t A?
?AG:eF bB ;oreAG: <eCF? o; ?tCte or t<eAr re=re?e:tCtAHe? C:F re=re?e:tCtAHe? o; A:ter:CtAo:CD
orGC:AMCtAo:?, EeC:? t<e CGreeEe:t o; t<e =CrtAe? A? A:ter:CtAo:CDAMeF ?o C? to creCte obDAGCtAo:? A:
A:ter:CtAo:CD DC>.
' ' ' '
33
6-.
*lmost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the
settlement" or persons or bodies under whose auspices the settlement too& place but who are not at all parties
to the conflict" are not contracting parties and who do not claim any obligation from the contracting parties or
incur any obligation from the settlement.
63. : t<A? cC?e, t<e =CrtAe? to t<e co:;DAct Cre t<e DC>;@D C@t<orAtB o; t<e &tCte C:F t<e R#! ><Ac< <C? :o
?tCt@? o; ?tCte<ooF C:F A? to CDD A:te:t? C:F =@r=o?e? C ;CctAo: >At<A: t<e ?tCte. T<e :o:)co:trCctA:G
?AG:CtorAe? o; t<e $oE+P AGreeEe:t >ere EorCD G@CrC:tor? o; t<e =rA:cA=De t<Ct, A: t<e terE? o; ArtAcDe
444V o; t<e AGreeEe:t, Jt<A? =eCce CGreeEe:t A? AE=DeEe:teF >At< A:teGrAtB C:F A: GooF ;CAt< bB bot<
=CrtAe?J. T<e EorCD G@CrC:tor? C??@EeF :o DeGCD obDAGCtAo:. It is recalled that the K8 by its representative
appended" presumably for avoidance of doubt" an understanding of the e'tent of the agreement to be
implemented as not including certain international crimes.
6,. *n international agreement in the nature of a treaty must create rights and obligations regulated by international
law so that a breach of its terms will be a breach determined under international law which will also provide
principle means of enforcement. T<e $oE+P AGreeEe:t creCteF :eAt<er rAG<t? :or obDAGCtAo:? cC=CbDe o;
beA:G reG@DCteF bB A:ter:CtAo:CD DC>. A: CGreeEe:t ?@c< C? t<e $oE+P AGreeEe:t ><Ac< brA:G? to C:
e:F C: A:ter:CD CrEeF co:;DAct :o Fo@bt creCte? C ;Cct@CD ?At@CtAo: o; re?torCtAo: o; =eCce t<Ct t<e
A:ter:CtAo:CD coEE@:AtB CctA:G t<ro@G< t<e &ec@rAtB Co@:cAD ECB tCLe :ote o;. "hat, however, will not
convert it to an international agreement which creates an obligation enforceable in international, as
distinguished from municipal, law . * breach of the terms of such a peace agreement resulting in resumption
of internal armed conflict or creating a threat to peace in the determination of the Security %ouncil may indicate a
reversal of the factual situation of peace to be visited with possible legal conseDuences arising from the new
situation of conflict created. Such conseDuences such as action by the Security %ouncil pursuant to %hapter EII
arise from the situation and not from the agreement" nor from the obligation imposed by it. Such action cannot
be regarded as a remedy for the breach. A =eCce CGreeEe:t ><Ac< ?ettDe? C: A:ter:CD CrEeF co:;DAct
cC::ot be C?crAbeF t<e ?CEe ?tCt@? C? o:e ><Ac< ?ettDe? C: A:ter:CtAo:CD CrEeF co:;DAct ><Ac<,
e??e:tACDDB, E@?t be bet>ee: t>o or Eore >CrrA:G &tCte?. T<e $oE+P AGreeEe:t cC::ot be
c<CrCcterA?eF C? C: A:ter:CtAo:CD A:?tr@Ee:t. ' ' '@ (mphasis" italics and underscoring supplied!
Similarly" that the M)*#*1 would have been signed by representatives of States and international organi;ations not
parties to the *greement would not have sufficed to vest in it a binding character under international law.
In another vein" concern has been raised that the M)*#*1 would amount to a unilateral declaration of the Philippine
State" binding under international law" that it would comply with all the stipulations stated therein" with the result that it
would have to amend its %onstitution accordingly regardless of the true will of the people. %ited as authority for this
view is .ustralia $& 1rance"
93.3:
also &nown as the 8uclear 2ests %ase" decided by the International %ourt of =ustice
I%=!.
In the 8uclear 2ests %ase" *ustralia challenged before the I%= the legality of FranceCs nuclear tests in the South
Pacific. France refused to appear in the case" but public statements from its President" and similar statements from
other French officials including its Minister of 1efence" that its 35>6 series of atmospheric tests would be its last"
persuaded the I%= to dismiss the case.
93.,:
2hose statements" the I%= held" amounted to a legal underta&ing addressed
to the international community" which reDuired no acceptance from other States for it to become effective.
(ssential to the I%= ruling is its finding that the French government intended to be bound to the international
community in issuing its public statements" $izB
6?. It is well recogni;ed that declarations made by way of unilateral acts" concerning legal or factual situations" may
have the effect of creating legal obligations. 1eclarations of this &ind may be" and often are" very specific. -<e:
At A? t<e A:te:tAo: o; t<e &tCte ECLA:G t<e FecDCrCtAo: t<Ct At ?<o@DF becoEe bo@:F CccorFA:G to At?
terE?, t<Ct A:te:tAo: co:;er? o: t<e FecDCrCtAo: t<e c<CrCcter o; C DeGCD @:FertCLA:G, t<e &tCte beA:G
t<e:ce;ort< DeGCDDB reK@AreF to ;oDDo> C co@r?e o; co:F@ct co:?A?te:t >At< t<e FecDCrCtAo:. *n underta&ing
of this &ind" if given publicly" and with an intent to be bound" even though not made within the conte't of
international negotiations" is binding. In these circumstances" nothing in the nature of a Duid pro Duo nor any
34
subseDuent acceptance of the declaration" nor even any reply or reaction from other States" is reDuired for the
declaration to ta&e effect" since such a reDuirement would be inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the State was made.
66. )f course" :ot CDD @:ADCterCD Cct? AE=DB obDAGCtAo:3 b@t C &tCte ECB c<oo?e to tCLe @= C certCA: =o?AtAo: A:
reDCtAo: to C =CrtAc@DCr ECtter >At< t<e A:te:tAo: o; beA:G bo@:F)t<e A:te:tAo: A? to be C?certCA:eF bB
A:ter=retCtAo: o; t<e Cct. When States ma&e statements by which their freedom of action is to be limited" a
restrictive interpretation is called for.
' ' ' '
+3. : C::o@:cA:G t<Ct t<e 1914 ?erAe? o; CtEo?=<erAc te?t? >o@DF be t<e DC?t, t<e !re:c< GoHer:Ee:t
co:HeBeF to t<e >orDF Ct DCrGe, A:cD@FA:G t<e A==DAcC:t, At? A:te:tAo: e;;ectAHeDB to terEA:Cte t<e?e te?t?.
t >C? bo@:F to C??@Ee t<Ct ot<er &tCte? EAG<t tCLe :ote o; t<e?e ?tCteEe:t? C:F reDB o: t<eAr beA:G
e;;ectAHe. T<e HCDAFAtB o; t<e?e ?tCteEe:t? C:F t<eAr DeGCD co:?eK@e:ce? E@?t be co:?AFereF >At<A: t<e
Ge:erCD ;rCEe>orL o; t<e ?ec@rAtB o; A:ter:CtAo:CD A:terco@r?e" and the confidence and trust which are so
essential in the relations among States. t A? ;roE t<e Cct@CD ?@b?tC:ce o; t<e?e ?tCteEe:t?, C:F ;roE t<e
cArc@E?tC:ce? Ctte:FA:G t<eAr ECLA:G, t<Ct t<e DeGCD AE=DAcCtAo:? o; t<e @:ADCterCD Cct E@?t be FeF@ceF.
T<e obIect? o; t<e?e ?tCteEe:t? Cre cDeCr C:F t<eB >ere CFFre??eF to t<e A:ter:CtAo:CD coEE@:AtB C? C
><oDe, C:F t<e Co@rt <oDF? t<Ct t<eB co:?tAt@te C: @:FertCLA:G =o??e??A:G DeGCD e;;ect. 2he %ourt
considers R,>- that the President of the 0epublic" in deciding upon the effective cessation of atmospheric tests"
gave an underta&ing to the international community to which his words were addressed. ' ' ' (mphasis and
underscoring supplied!
*s gathered from the above#Duoted ruling of the I%=" public statements of a state representative may be construed as
a unilateral declaration only when the following conditions are presentB the statements were clearly addressed to the
international community" the state intended to be bound to that community by its statements" and that not to give legal
effect to those statements would be detrimental to the security of international intercourse. Plainly" unilateral
declarations arise only in peculiar circumstances.
2he limited applicability of the 8uclear 2ests %ase ruling was recogni;ed in a later case decided by the I%= entitled
(urkina 1aso $& ,ali"93.?: also &nown as the %ase %oncerning the Frontier 1ispute. 2he public declaration subject of
that case was a statement made by the President of Mali" in an interview by a foreign press agency" that Mali would
abide by the decision to be issued by a commission of the )rgani;ation of *frican Knity on a frontier dispute then
pending between Mali and Aur&ina Faso.
Knli&e in the 8uclear 2ests %ase" the I%= held that the statement of MaliCs President was not a unilateral act with legal
implications. It clarified that its ruling in the 8uclear 2ests case rested on the peculiar circumstances surrounding the
French declaration subject thereof" to witB
6-. In order to assess the intentions of the author of a unilateral act" account must be ta&en of all the factual
circumstances in which the act occurred. For e'ample" A: t<e N@cDeCr Te?t? cC?e?, t<e Co@rt tooL t<e HAe>
t<Ct ?A:ce t<e C==DAcC:t &tCte? >ere :ot t<e o:DB o:e? co:cer:eF Ct t<e =o??AbDe co:tA:@C:ce o;
CtEo?=<erAc te?tA:G bB t<e !re:c< GoHer:Ee:t, t<Ct GoHer:Ee:tO? @:ADCterCD FecDCrCtAo:? <CF
Qco:HeBeF to t<e >orDF Ct DCrGe, A:cD@FA:G t<e A==DAcC:t, At? A:te:tAo: e;;ectAHeDB to terEA:Cte t<e?e te?t?Q
I.%.=. 0eports 35>6" p. ,<5" para. +3J p. 6>6" para. +?!. : t<e =CrtAc@DCr cArc@E?tC:ce? o; t<o?e cC?e?, t<e
!re:c< GoHer:Ee:t co@DF :ot e9=re?? C: A:te:tAo: to be bo@:F ot<er>A?e t<C: bB @:ADCterCD
FecDCrCtAo:?. t A? FA;;Ac@Dt to ?ee <o> At co@DF <CHe Ccce=teF t<e terE? o; C :eGotACteF ?oD@tAo: >At< eCc<
o; t<e C==DAcC:t? >At<o@t t<erebB Ieo=CrFAMA:G At? co:te:tAo: t<Ct At? co:F@ct >C? DC>;@D. T<e
cArc@E?tC:ce? o; t<e =re?e:t cC?e Cre rCFAcCDDB FA;;ere:t. Here, t<ere >C? :ot<A:G to <A:Fer t<e PCrtAe?
;roE EC:A;e?tA:G C: A:te:tAo: to Ccce=t t<e bA:FA:G c<CrCcter o; t<e co:cD@?Ao:? o; t<e OrGC:AMCtAo: o;
A;rAcC: #:AtB *eFACtAo: CoEEA??Ao: bB t<e :orECD Eet<oF8 C ;orECD CGreeEe:t o: t<e bC?A? o;
recA=rocAtB. Since no agreement of this &ind was concluded between the Parties" the %hamber finds that there
are no grounds to interpret the declaration made by MaliCs head of State on 33 *pril 35>+ as a unilateral act with
legal implications in regard to the present case. (mphasis and underscoring supplied!
*ssessing the M)*#*1 in light of the above criteria" it would not have amounted to a unilateral declaration on the part
35
of the Philippine State to the international community. 2he Philippine panel did not draft the same with the clear
intention of being bound thereby to the international community as a whole or to any State" but only to the MILF. While
there were States and international organi;ations involved" one way or another" in the negotiation and projected
signing of the M)*#*1" they participated merely as witnesses or" in the case of Malaysia" as facilitator. *s held in the
LomFQ *ccord case" the mere fact that in addition to the parties to the conflict" the peace settlement is signed by
representatives of states and international organi;ations does not mean that the agreement is internationali;ed so as
to create obligations in international law.
Since the commitments in the M)*#*1 were not addressed to States" not to give legal effect to such commitments
would not be detrimental to the security of international intercourse # to the trust and confidence essential in the
relations among States.
In one important respect" the circumstances surrounding the M)*#*1 are closer to that of (urkina 1aso wherein" as
already discussed" the Mali PresidentCs statement was not held to be a binding unilateral declaration by the I%=. *s in
that case" there was also nothing to hinder the Philippine panel" had it really been its intention to be bound to other
States" to manifest that intention by formal agreement. 7ere" that formal agreement would have come about by the
inclusion in the M)*#*1 of a clear commitment to be legally bound to the international community" not just the MILF"
and by an eDually clear indication that the signatures of the participating states#representatives would constitute an
acceptance of that commitment. (ntering into such a formal agreement would not have resulted in a loss of face for
the Philippine government before the international community" which was one of the difficulties that prevented the
French /overnment from entering into a formal agreement with other countries. 2hat the Philippine panel did not enter
into such a formal agreement suggests that it had no intention to be bound to the international community. )n that
ground" the M)*#*1 may :ot be considered a unilateral declaration under international law.
2he M)*#*1 not being a document that can bind the Philippines under international law notwithstanding" respondentsC
almost consummated act of G@CrC:teeA:G CEe:FEe:t? to t<e DeGCD ;rCEe>orL A?, bB At?eD;, ?@;;AcAe:t to
co:?tAt@te GrCHe Cb@?e o; FA?cretAo:. 2he grave abuse lies not in the fact that they considered" as a solution to the
Moro Problem" the creation of a state within a state" but in their bra;en >ADDA:G:e?? to G@CrC:tee t<Ct Co:Gre?? C:F
t<e ?oHereAG: !ADA=A:o =eo=De >o@DF GAHe t<eAr AE=rAECt@r to t<eAr ?oD@tAo:. Kpholding such an act would amount
to authori;ing a usurpation of the constituent powers vested only in %ongress" a %onstitutional %onvention" or the
people themselves through the process of initiative" for the only way that the ('ecutive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.
2he sovereign people may" if it so desired" go to the e'tent of giving up a portion of its own territory to the Moros for
the sa&e of peace" for it can change the %onstitution in any it wants" so long as the change is not inconsistent with
what" in international law" is &nown as )us 5ogens.93.6: 0espondents" however" may not preempt it in that decision.
&#**AR%
2he petitions are ripe for adjudication. 2he failure of respondents to consult the local government units or communities
affected constitutes a departure by respondents from their mandate under (.). 8o. ?. Moreover" respondents
e'ceeded their authority by the mere act of guaranteeing amendments to the %onstitution. *ny alleged violation of the
%onstitution by any branch of government is a proper matter for judicial review.
*s the petitions involve constitutional issues which are of paramount public interest or of transcendental importance"
the %ourt grants the petitioners" petitioners#in#intervention and intervening respondents the reDuisite locus standi in
&eeping with the liberal stance adopted in Da$id $& ,acapagal-.rro"o.
%ontrary to the assertion of respondents that the non#signing of the M)*#*1 and the eventual dissolution of the /0P
Peace Panel mooted the present petitions" the %ourt finds that the present petitions provide an e'ception to the @moot
and academic@ principle in view of a! the grave violation of the %onstitution involvedJ b! the e'ceptional character of
the situation and paramount public interestJ c! the need to formulate controlling principles to guide the bench" the bar"
and the publicJ and d! the fact that the case is capable of repetition yet evading review.
36
2he M)*#*1 is a significant part of a series of agreements necessary to carry out the /0P#MILF 2ripoli *greement on
Peace signed by the government and the MILF bac& in =une ,--3. 7ence" the present M)*#*1 can be renegotiated
or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original.
2he %ourt" however" finds that the prayers for mandamus have been rendered moot in view of the respondentsC action
in providing the %ourt and the petitioners with the official copy of the final draft of the M)*#*1 and its anne'es.
2he peopleCs right to information on matters of public concern under Sec. >" *rticle III of the %onstitution is in splendid
s"mmetr" with the state policy of full public disclosure of all its transactions involving public interest under Sec. ,."
*rticle II of the %onstitution. 2he right to information guarantees the right of the people to demand information" while
Section ,. recogni;es the duty of officialdom to give information even if nobody demands. 2he complete and effective
e'ercise of the right to information necessitates that its complementary provision on public disclosure derive the same
self#e'ecutory nature" subject only to reasonable safeguards or limitations as may be provided by law.
2he contents of the M)*#*1 is a matter of paramount public concern involving public interest in the highest order. In
declaring that the right to information contemplates steps and negotiations leading to the consummation of the
contract" jurisprudence finds no distinction as to the e'ecutory nature or commercial character of the agreement.
*n essential element of these twin freedoms is to &eep a continuing dialogue or process of communication between
the government and the people. %orollary to these twin rights is the design for feedbac& mechanisms. 2he right to
public consultation was envisioned to be a species of these public rights.
*t least three pertinent laws animate these constitutional imperatives and justify the e'ercise of the peopleCs right to be
consulted on relevant matters relating to the peace agenda.
-ne" (.). 8o. ? itself is replete with mechanics for continuing consultations on both national and local levels and for a
principal forum for consensus#building. In fact" it is the duty of the Presidential *dviser on the Peace Process to
conduct regular dialogues to see& relevant information" comments" advice" and recommendations from peace partners
and concerned sectors of society.
'wo" 0epublic *ct 8o. >3<- or the Local /overnment %ode of 3553 reDuires all national offices to conduct
consultations before any project or program critical to the environment and human ecology including those that may
call for the eviction of a particular group of people residing in such locality" is implemented therein. 2he M)*#*1 is one
peculiar program that uneDuivocally and unilaterally vests ownership of a vast territory to the Aangsamoro people"
which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from
their total environment.
'hree" 0epublic *ct 8o. .?>3 or the Indigenous Peoples 0ights *ct of 355> provides for clear#cut procedure for the
recognition and delineation of ancestral domain" which entails" among other things" the observance of the free and
prior informed consent of the Indigenous %ultural %ommunitiesIIndigenous Peoples. !otabl"# the statute does not
grant the *+ecuti$e Department or an" go$ernment agenc" the power to delineate and recognize an ancestral domain
claim b" mere agreement or compromise&
2he invocation of the doctrine of e'ecutive privilege as a defense to the general right to information or the specific right
to consultation is untenable. 2he various e'plicit legal provisions fly in the face of e'ecutive secrecy. In any event"
respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the
M)*#*1" for judicial compliance and public scrutiny.
In sum" the Presidential *dviser on the Peace Process committed grave abuse of discretion when he failed to carry out
the pertinent consultation process" as mandated by (.). 8o. ?" 0epublic *ct 8o. >3<-" and 0epublic *ct 8o. .?>3.
2he furtive process by which the M)*#*1 was designed and crafted runs contrary to and in e'cess of the legal
authority" and amounts to a whimsical" capricious" oppressive" arbitrary and despotic e'ercise thereof. It illustrates a
37
gross evasion of positive duty and a virtual refusal to perform the duty enjoined.
2he M)*#*1 cannot be reconciled with the present %onstitution and laws. 8ot only its specific provisions but the very
concept underlying them" namely" the associative relationship envisioned between the /0P and the A=(" are
@:co:?tAt@tAo:CD , for the concept presupposes that the associated entity is a state and implies that the same is on its
way to independence.
While there is a clause in the M)*#*1 stating that the provisions thereof inconsistent with the present legal framewor&
will not be effective until that framewor& is amended" the same does not cure its defect. 2he inclusion of provisions in
the M)*#*1 establishing an associative relationship between the A=( and the %entral /overnment is" itself" a
violation of the Memorandum of Instructions From 2he President dated March 3" ,--3" addressed to the government
peace panel. Moreover" as the clause is worded" it virtually guarantees that the necessary amendments to the
%onstitution and the laws will eventually be put in place. 8either the /0P Peace Panel nor the President herself is
authori;ed to ma&e such a guarantee. Kpholding such an act would amount to authori;ing a usurpation of the
constituent powers vested only in %ongress" a %onstitutional %onvention" or the people themselves through the
process of initiative" for the only way that the ('ecutive can ensure the outcome of the amendment process is through
an undue influence or interference with that process.
While the M)*#*1 would not amount to an international agreement or unilateral declaration binding on the Philippines
under international law" respondentsC act of guaranteeing amendments is" by itself" already a constitutional violation
that renders the M)*#*1 fatally defective.
-HERE!ORE" respondentsC motion to dismiss is "ENE". 2he main and intervening petitions are /IE(8 1K(
%)K0S( and hereby /0*82(1.
2he Memorandum of *greement on the *ncestral 1omain *spect of the /0P#MILF 2ripoli *greement on Peace of
,--3 is declared contrary to law and the %onstitution.
&O OR"ERE".
%)8%7I2* %*0PI) M)0*L(S
*ssociate =ustice
W( %)8%K0B
0($8*2) S. PK8)
%hief =ustice
L()8*01) *. PKISK MAI 8/
*ssociate =ustice
*82)8I) 2. %*0PI)
*ssociate =ustice
%)8SK(L) $8*0(S# S*82I*/)
*ssociate =ustice
M*. *LI%I* *KS20I*#M*02I8(H
*ssociate =ustice
0(8*2) %. %)0)8*
*ssociate =ustice
38
*1)LF) S. *H%K8*
*ssociate =ustice
1*82( ). 2I8/*
*ssociate =ustice
P0(SAI2(0) =. E(L*S%)" =0.
*ssociate =ustice
MI8I2* E. %7I%)#8*H*0I)
*ssociate =ustice
*82)8I) (1K*01) A. 8*%7K0*
*ssociate =ustice
0KA(8 2. 0($(S
*ssociate =ustice
2(0(SI2* =. L()8*01)#1( %*S20)
*ssociate =ustice
*02K0) 1. A0I)8
*ssociate =ustice
93:
(ric /utierre; and *bdulwahab /uialal" 27( K8FI8IS7(1 =I7*1B 27( M)0) ISL*MI% LIA(0*2I)8 F0)82
*81 P(*%( I8 MI81*8*) I8 0(A(LS" W*0L)01S *81 KL*M*B * 0(*1(0 )8 MKSLIM S(P*0*2ISM *81
27( W*0 I8 S)K27(08 P7ILIPPI8(S ,>+ 3555!.
9,:
Memorandum of 0espondents dated September ,6" ,--." p. 3-.
9?:
Memorandum of 0espondents dated September ,6" ,--." pp. 3-#33.
96:
9ide Salah =ubair" 27( L)8/ 0)*1 2) P(*%(B I8SI1( 27( /0P#MILF P(*%( P0)%(SS ?+#?< ,-->!.
9+:
Memorandum of 0espondents dated September ,6" ,--." p. 3,.
9<:
9ide Salah =ubair" 27( L)8/ 0)*1 2) P(*%(B I8SI1( 27( /0P#MILF P(*%( P0)%(SS 6-#63 ,-->!.
9>:
%omposed of its %hairperson" Sec. 0odolfo /arcia" and members" *tty. Leah *rmamento" *tty. Sedfrey %andelaria"
with Mar& 0yan Sullivan as Secretariat head.
9.:
0epresented by /overnor =esus Sacdalan andIor Eice#/overnor (mmanuel PiFGol.
95:
Rollo /.0. 8o. 3.?+53!" pp. ?#??.
93-:
Supplement to Petition with motion for leave! of *ugust 33" ,--." rollo /.0. 8o. 3.?+53!" pp. 36?#3<,.
933:
Rollo /.0. 8o. 3.?>+,!" pp. ?#,..
93,:
0epresented by Mayor %elso L. Lobregat.
93?:
Rollo /.0. 8o. 3.?+53!" pp. 3?,#3?+J rollo /.0. 8o. 3.?>+,!" pp. <.#>3.
39
936:
Rollo /.0. 8o. 3.?+53!" pp. 3?-#3?3J rollo /.0. 8o. 3.?>+,!" pp. <<#<>.
93+:
Rollo /.0. 8o. 3.?>+,!" pp. 3>?#,6<.
93<:
0epresented by Mayor Lawrence Lluch %ru;.
93>:
0epresented by /overnor 0olando $ebes.
93.:
8amely" Seth Frederic& =aloslos" Fernando %abigon" =r." Kldarico Mejorada II" (dionar Hamoras" (dgar Aaguio"
%edric *driatico" Feli'berto Aolando" =oseph Arendo *jero" 8orbideiri (dding" *necito 1arunday" *ngelica %arreon"
and Lu;viminda 2orrino.
935:
Rollo /.0. 8o. 3.?5+3!" pp. ?#??.
9,-:
Rollo /.0. 8o. 3.?5<,!" pp. ?# ,-.
9,3:
0epresented by Mayor %herrylyn Santos#*&bar.
9,,:
0epresented by /ov. Suharto Mangudadatu.
9,?:
0epresented by Mayor 8oel 1eano.
9,6:
Rollo /.0. 8o. 3.?+53!" pp. 6+3#6+?.
9,+:
0.*. 8o. <>?6" as amended by 0.*. 5-+6 entitled *8 *%2 2) S20(8/27(8 *81 (OP*81 27( )0/*8I% *%2
F)0 27( *K2)8)M)KS 0(/I)8 I8 MKSLIM MI81*8*)" *M(81I8/ F)0 27( PK0P)S( 0(PKALI% *%2
8). <>?6" (82I2L(1 *8 *%2 )F P0)EI1I8/ F)0 27( *K2)8)M)KS 0(/I)8 I8 MKSLIM MI81*8*)" *S
*M(81(1.
9,<:
0.*. 8o. .?>3" *8 *%2 2) 0(%)/8IH(" P0)2(%2 *81 P0)M)2( 27( 0I/72S )F I81I/(8)KS
%KL2K0*L %)MMK8I2I(SII81I/(8)KS P()PL(S" %0(*2I8/ * 8*2I)8*L %)MMISSI)8 )8 I81I/(8)KS
P()PL(S" (S2*ALIS7I8/ IMPL(M(82I8/ M(%7*8ISMS" *PP0)P0I*2I8/ FK81S 27(0(F)0" *81 F)0
)27(0 PK0P)S(S" )ctober ,5" 355>.
9,>:
%esar *dib Majul" 27( /(8(0*L 8*2K0( )F ISL*MI% L*W *81 I2S *PPLI%*2I)8 I8 27( P7ILIPPI8(S"
lecture delivered as part of the 0icardo Paras Lectures" a series jointly sponsored by the %ommission on Aar
Integration of the Supreme %ourt" the Integrated Aar of the Philippines and the K.P. Law %enter" September ,6" 35>>.
9,.:
Ibid." $ide M.*. MuDtedar 4han Ph.1." IMMI/0*82 *M(0I%*8 MKSLIMS *81 27( M)0*L 1IL(MM*S )F
%I2IH(8S7IP" httpBIIwww.islamfortoday.comI&han-6.htm" visited on September 3." ,--." and Syed Shahabuddin"
MKSLIM W)0L1 *81 27( %)82(MP)0*0$ I=M*C )8 0KL(S )F /)E(08*8%( # II"
httpBIIwww.milliga;ette.comI*rchivesI,--6I-3#3+May-6#Print#(ditionI-3-+,--6>3.htm" visited on September 3." ,--..
9,5:
M)*#*1 2erms of 0eference.
9?-:
M)*#*1" %oncepts and Principles" par. 3.
9?3:
* traditional Muslim historical account of the acts of Shariff 4abungsuwan is Duoted by historian %esar *dib Majul in
his boo&" Muslims in the Philippines 35>?!B
*fter a time it came to pass that Mamalu" who was the chief man ne't to 4abungsuwan" journeyed to %otabato. 7e
found there that many of the people had ceased to regard the teachings of the 4oran and had fallen into evil ways.
Mamamlu sent to 4abungsuwan word of these things.
40
4abungsuwan with a portion of his warriors went from Malabang to %otabato and found that the word sent to him by
Mamamlu was true. 2hen he assembled together all the people. 2hose of them" who had done evilly and disregarded
the teachings of the 4oran thenceforth" he drove out of the town into the hills" with their wives and children.
T<o?e >AcLeF o:e ><o >ere t<@? cC?t o@t >ere t<e beGA::A:G? o; t<e trAbe? o; t<e TAr@rCA? C:F *C:obo?" who
live to the east of %otabato in the country into which their evil forefathers were driven. *nd even to this day they
worship not /odJ neither do they obey the teachings of the 4oran . . . B@t t<e =eo=De o; 0Cb@:G?@>C:, ><o
reGCrFeF t<e teCc<A:G? o; t<e 0orC: C:F DAHeF A: ;eCr o; GoF, =ro?=ereF C:F A:creC?eF, C:F >e *oro? o; toFCB
Cre t<eAr Fe?ce:FC:t?. %itation omitted" emphasis supplied!.
9?,:
Id." par. ,.
9??:
Id." par. ?.
9?6:
Id." par. 6.
9?+:
Francisco L. /on;ales" Sultans of a Eiolent Land" in 0ebels" Warlords and KlamaB * 0eader on Muslim Separatism
and the War in Southern Philippines 55" 3-? 3555!.
9?<:
2he %harter of the *ssembly of First 8ations" the leading advocacy group for the indigenous peoples of %anada"
adopted in 35.+" begins thusB
@W( 27( %7I(FS )F 27( I81I*8 FI0S2 8*2I)8S I8 %*8*1* 7*EI8/ 1(%L*0(1B
27*2 our peoples are the original peoples of this land having been put here by the %reatorJ ' ' '.@
9?>:
Id." par. <.
9?.:
M)*#*1" 2erritory" par. 3.
9?5:
Id." par. ,c!.
96-:
Id." par. ,d!.
963:
Id." par. ,e!.
96,:
Id." par. ,f!.
96?:
Id." par" ,g!3!.
966:
Id." par. ,h!.
96+:
Id." par. ,i!.
96<:
M)*#*1" 0esources" par. 6.
96>:
Ibid.
96.:
Id." par. +.
965:
Id." par. <.
9+-:
Id." par. >.
9+3:
Id." par. 5.
41
9+,:
M)*#*1" /overnance" par. ?.
9+?:
@I8 WI28(SS W7(0()F" the undersigned" being the representatives of the Parties9": hereby affi' their signatures.@
9+6:
9ide 35.> %onstitution" *rticle EIII" Section 3.
9++:
9ide ,uskrat $& 3S# ,35 KS ?6< 3533!.
9+<:
1last $& 5ohen# .. S.%t. 356," 35+- 35<.!.
9+>:
Didipio *arth Sa$ers' ,ulti-Purpose .ssociation# Incorporated :D*S.,.; $& /ozun" /.0. 8o. 3+>..," March ?-"
,--<" 6.+ S%0* ,.<.
9+.:
9ide 3&S& $& ,uskrat# ,35 K.S. ?6<" ?+> 35-,!.
9+5:
/uingona# )r& $& 5ourt of .ppeals" ?+6 Phil. 63+" 6,>#6,. 355.!.
9<-:
1rancisco# )r& $& 6ouse of Representati$es# 6<- Phil. .?-" 5-3#5-, ,--?! citation omitted!.
9<3:
9ide <arth $& Seldin" 6,, KS 65-" +33 35>+!.
9<,:
9ide id. at +,<.
9<?:
Solicitor /eneralCs %omment to /.0. 8o. 3.?>+," pp. 5#33.
9<6:
M)*#*1" pp. ?#>" 3-.
9<+:
?53 Phil. 6? ,---!.
9<<:
Id. at 3->#3-..
9<>:
+?- KS ,5- ,---!.
9<.:
Id. at ,5,.
9<5:
+-+ K.S. 366 355,!.
9>-:
Id. at 3>+.
9>3:
*lthough only one petition is denominated a petition for certiorari" most petitions pray that the M)*#*1 be declared
unconstitutionalInull and void.
9>,:
9ide 0KL(S )F %)K02" 0ule <+" Secs. 3 and ,.
9>?:
9ide 0KL(S )F %)K02" 0ule <+" Sec. ?.
9>6:
'a78ada $& .ngara# ??. Phil. +6<" +>+ 355>!.
9>+:
(ntitled 1(FI8I8/ P)LI%$ *81 *1MI8IS20*2IE( S20K%2K0( F)0 /)E(08M(82CS P(*%( (FF)02S
which reaffirms and reiterates ('ecutive )rder 8o. 3,+ of September 3+" 355?.
9><:
(.). 8o. ?" ,--3!" Sec. 3.
42
9>>:
9ide 'a78ada $& .ngara# supra note >6.
9>.:
(aker $& 5arr# ?<5 K.S. 3.< 35<,!.
9>5:
Eicente E. Mendo;a " =K1I%I*L 0(EI(W )F %)8S2I2K2I)8*L PK(S2I)8S 3?> ,--6!.
9.-:
1rancisco# )r& $& 'he 6ouse of Representati$es" 6<- Phil. .?-" .5< ,--?!.
9.3:
Da$id $& ,acapagal-.rro"o" /.0. 8o. 3>3?5<" May ?" ,--<" 6.5 S%0* 3<-" ,,?.
9.,:
=ilosba"an# Inc& $& ,orato" ?,- Phil. 3>3 355+!.
9.?:
,acasiano $& !6." /.0. 8o. 3->5,3" =uly 3" 355?" ,,6 S%0* ,?<.
9.6:
Del ,ar $& Phil& .musement and /aming 5orp&# 6-- Phil. ?->" ?,.#?,5 ,---! citing Phil& 5onstitution .ss'n&# Inc&
$& ,atha"# et al&# 3,6 Phil. .5- 35<<!.
9.+:
9ide !..5P $& .labama" ?+> K.S. 665 35+.!.
9.<:
1rancisco# )r& $& 'he 6ouse of Representati$es" supra note .-.
9.>:
Pro$ince of (atangas $& Romulo# /.0. 8o. 3+,>>6" May ,>" ,--6" 6,5 S%0* >?<.
9..:
1irestone 5eramics# Inc& $& 5ourt of .ppeals" ?>, Phil. 6-3 3555! citing /ibson $& )udge Re$illa# 3.- Phil. <6+
35>5!.
9.5:
Supra note .3.
95-:
Integrated (ar of the Phils& $& 6on& >amora" ?5, Phil. <3. ,---!.
953:
'atad $& Secretar" of *nerg"" ?6< Phil. ?,3 355>!.
95,:
9ide %ompliance of September 3" ,--. of respondents.
95?:
9ide Manifestation of September 6" ,--. of respondents.
956:
Supra note .3.
95+:
Id. citing Pro$ince of (atangas $& Romulo" supra note .>.
95<:
Id. citing 0acson $& Perez" 63- Phil. >. ,--3!.
95>:
Id. citingPro$ince of (atangas $& Romulo" supra note .>.
95.:
Id. citing .lba78a $& 5omelec" 6>. Phil. 563 ,--6!J 5hief Supt& .cop $& /uingona )r." 6?? Phil. <, ,--,!J
S.!0.=.S $& *+ecuti$e Secretar" Re"es" 6<< Phil. 6., ,--6!.
955:
3S $& <&'& /rant 5o&# ?6+ K.S. <,5 35+?!J 3S $& 'rans-,issouri 1reight .ssn" 3<< K.S. ,5-" ?-.#?3- 3.5>!J
<alling $& 6elmerich ? Pa"ne# Inc." ?,? K.S. ?>" 6? 3566!J /ra" $& Sanders# ?>, K.S. ?<." ?>< 35<?!J Defunis $&
-degaard" 63< K.S. ?3, 35>6!.
93--:
Supra note .>.
43
93-3:
/.0. 8o. 3>.5,-" )ctober 3+" ,-->" +?< S%0* ,5-.
93-,:
5ha$ez $& P5//" ?<< Phil. .<?" .>3 3555!.
93-?:
/.0. 8o. 3>..?-" =uly 36" ,--..
93-6:
Supra note 5..
93-+:
-rtega $& @uezon 5it" /o$ernment" /.0. 8o. 3<36--" September ," ,--+" 6<5 S%0* ?...
93-<:
.lunan III $& ,irasol# ?6, Phil. 6>< 355>!J 9iola $& .lunan III" ?6? Phil. 3.6 355>!J 5hief Superintendent .cop $&
/uingona# )r&# supra note 5.J Roble .rrastre# Inc& $& 9illaflor" /.0. 8o. 3,.+-5" *ugust ,," ,--<" 655 S%0* 6?6" 66>.
93->:
%)8S2I2K2I)8" *rticle III" Sec. >.
93-.:
.- Phil. ?.? 356.!.
93-5:
0egaspi $& 5i$il Ser$ice 5ommission" /.0. 8o. L#>,335" May ,5" 35.>" 3+- S%0* +?-.
933-:
3<, Phil. .<. 35><!.
9333:
(aldoza $& Dimaano" supra at .><.
933,:
0egaspi $& 5i$il Ser$ice 5ommission" supra note 3-5.
933?:
5ha$ez $& P5//" ?<- Phil 3??" 3<6 355.!.
9336:
In 0egaspi $& 5i$il Ser$ice 5ommission" supra note 3-5 at +63" it was held thatB
In determining whether or not a particular information is of public concern there is no rigid test which can be applied.
MPublic concernC li&e Mpublic interestC is a term that eludes e'act definition. Aoth terms embrace a broad spectrum of
subjects which the public may want to &now" either because these directly affect their lives" or simply because such
matters naturally arouse the interest of an ordinary citi;en. In the final analysis" it is for the courts to determine on a
case by case basis whether the matter at issue is of interest or importance" as it relates to or affects the public.
933+:
0espondentsC %omment of *ugust 6" ,--." p. 5.
933<:
Subido $& -zaeta" supra note 3-..
933>:
'a78ada# et al& $& 6on& 'u$era# et al&" ,,- Phil. 6,, 35.+!J 'a78ada# $& 6on& 'u$era" ,?- Phil. +,. 35.<!.
933.:
0egaspi $& 5i$il Ser$ice 5ommission" supra note 3-5.
9335:
9almonte $& (elmonte" )r&" /.0. 8o. >65?-" February 3?" 35.5" 3>- S%0* ,+<.
93,-:
5ha$ez $& P5//" supra note 33?J 5ha$ez $& P5//# supra note 3-,.
93,3:
(anta" Republic .ct or (.-R. ABCD $& 5ommission on *lections" /.0. 3>>,>3" May 6" ,-->" +,? S%0* 3.
93,,: 5ha$ez $& Public *states .uthorit"" 6?? Phil. +-<" +?,#+?? ,--,!.
93,?:
9ide E 0ecord" %)8S2I2K2I)8*L %)MMISSI)8 ,<#,. September ,6" 35.<! which is replete with such
descriptive phrase used by %ommissioner Alas )ple.
44
93,6:
%)8S2I2K2I)8" *rticle II" Sec. ,..
93,+:
Aernas" =oaDuin" 2he 35.> %)8S2I2K2I)8 )F 27( 0(PKALI% )F 27( P7ILIPPI8(SB * %)MM(82*0$ 3--
,--?!.
93,<:
9ide Aernas" =oaDuin" 27( I82(82 )F 27( 35.< %)8S2I2K2I)8 W0I2(0S 3++ 355+!.
93,>:
9ide 5ha$ez $& Public *states .uthorit"" supra note 3,,.
93,.:
E 0(%)01" %)8S2I2K2I)8*L %)MMISSI)8 ,+ September ,6" 35.<!.
93,5:
E 0(%)01" %)8S2I2K2I)8*L %)MMISSI)8 ,.#,5 September ,6" 35.<!. 2he phrase @safeguards on national
interest@ that may be provided by law was subseDuently replaced by @reasonable conditions"@ as proposed by
%ommissioner 1avide 9$ide E 0(%)01" %)8S2I2K2I)8*L %)MMISSI)8 ?- September ,6" 35.<!:.
93?-:
In 5ha$ez $& !ational 6ousing .uthorit"" /.0. 8o. 3<6+,>" *ugust 3+" ,-->" +?- S%0* ,?+" ??3" the %ourt statedB
' ' ' 2he duty to disclose covers only transactions involving public interest" while the duty to allow access has a
broader scope of information which embraces not only transactions involving public interest" but any matter contained
in official communications and public documents of the government agency. Knderscoring supplied!
93?3:
9almonte $& (elmonte# )r&" supra note 335.
93?,:
E 0(%)01" %)8S2I2K2I)8*L %)MMISSI)8 ,." ?- September ,6" 35.<!.
93??:
Supra note ++.
93?6:
(O(%K2IE( )01(0 8). ? ,--3!" Sec. ? a!.
93?+:
(O(%K2IE( )01(0 8). ? ,--3!" Sec. 6 b!.
93?<:
0espondentsC Memorandum of September ,6" ,--." p. 66.
93?>:
(O(%K2IE( )01(0 8o. ? ,--3!" Sec. + b!" par. <.
93?.:
(O(%K2IE( )01(0 8o. ? ,--3!" Sec. ." see also Sec. 3-.
93?5:
%f. /arcia $& (oard of In$estments" /.0. 8o. ..<?>" September >" 35.5" 3>> S%0* ?>6" ?.,#?.6 where it was
held that the )mnibus Investment %ode of 35.> mandates the holding of consultations with affected communities"
whenever necessary" on the acceptability of locating the registered enterprise within the community.
936-:
In their Memorandum" respondents made allegations purporting to show that consultations were conducted on
*ugust ?-" ,--3 in Marawi %ity and Iligan %ity" on September ,-" ,--3 in Midsayap" %otabato" and on =anuary 3.#35"
,--, in Metro Manila. Memorandum of September ,6" ,--." p. 3?!
9363:
%f. 5ha$ez $& Public *states .uthorit"" supra note 3,-.
936,:
0(PKALI% *%2 8o. >3<-" Sec. ,c!.
936?:
0(PKALI% *%2 8o. >3<-" Sec. ,>.
9366:
63< Phil. 6?. ,--3!.
45
936+:
Id.J $ide .l$arez $& PI5-P Resources# Inc&" /.0. 8o. 3<,,6?" 8ovember ,5" ,--<" +-. S%0* 65.J %f. (angus 1r"
1isherfolk $& 0anzanas" 6+? Phil. 6>5 ,--,!.
936<:
9ide M)*#*1 @%oncepts and Principles"@ pars. , L > in relation to @0esources"@ par. 5 where vested property rights
are made subject to the cancellation" modification and review by the Aangsamoro =uridical (ntity.
936>:
0(PKALI% *%2 8o. .?>3 or @27( I81I/(8)KS P()PL(S 0I/72S *%2 of 355>"@ Sec. 3<.
936.:
Id&" Sec. ? g!" %hapter EIII" inter alia.
9365:
'a78ada $& 'u$era" 8o. L#<?53+" 1ecember ,5" 35.<" 36< S%0* 66<" 6+<.
93+-:
%.I. 4eitner and W.M. 0eisman" F0(( *SS)%I*2I)8B 27( K8I2(1 S2*2(S (OP(0I(8%(" ?5 2e'. IntCl L.=. 3
,--?!.
93+3:
@2he former 2rust 2erritory of the Pacific Islands is made up of the %aroline Islands" the Marshall Islands" and the
8orthern Mariana Islands" which e'tend east of the Philippines and northeast of Indonesia in the 8orth Pacific )cean.@
Ibid.!
93+,:
7. 7ills" F0(( *SS)%I*2I)8 F)0 MI%0)8(SI* *81 27( M*0S7*LL ISL*81SB * P)LI2I%*L S2*2KS
M)1(L" ,> K. 7aw. L. 0ev. 3 ,--6!.
93+?:
7en&in" et al." I82(08*2I)8*L L*WB %*S(S *81 M*2(0I*LS" ,
nd
ed." ,>6 35.>!.
93+6:
%onvention on 0ights and 1uties of States" 1ec. ,<" 35??" 65 Stat. ?-5>" 3<+ L.8.2.S. 35.
93++:
/.0. 8o. 3+.-.." =uly <" ,--+" 6<, S%0* <,," <?,.
93+<:
*8 *%2 2) S20(8/27(8 *81 (OP*81 27( )0/*8I% *%2 F)0 27( *K2)8)M)KS 0(/I)8 I8 MKSLIM
MI81*8*)" *M(81I8/ F)0 27( PK0P)S( 0(PKALI% *%2 8). <>?6" (82I2L(1 M*8 *%2 P0)EI1I8/ F)0
27( *K2)8)M)KS 0(/I)8 I8 MKSLIM MI81*8*)"C *S *M(81(1" March ?3" ,--3.
93+>:
*8 *%2 2) 0(%)/8IH(" P0)2(%2 *81 P0)M)2( 27( 0I/72S )F I81I/(8)KS %KL2K0*L
%)MMK8I2I(SII81I/(8)KS P()PL(S" %0(*2I8/ * 8*2I)8*L %)MMISSI)8 )8 I81I/(8)KS P()PL(S"
(S2*ALIS7I8/ IMPL(M(82I8/ M(%7*8ISMS" *PP0)P0I*2I8/ FK81S 27(0(F)0" *81 F)0 )27(0
PK0P)S(S" )ctober ,5" 355>.
93+.:
5- Phil. >-" >?#>6 35+3!.
93+5:
3>> Phil. 3<-" 3>.#3>5 35>5!.
93<-:
, S.%.0. ,3> 355.!.
93<3:
555 K.8.2.S. 3>3 March ,?" 35><!.
93<,:
55? K.8.2.S. ? =anuary ?" 35><!.
93<?:
0eague of !ations -fficial )ournal" Special Supp. 8o. ? )ctober 35,-!.
93<6:
Lorie M. /raham" 0(S)LEI8/ I81I/(8)KS %L*IMS 2) S(LF#1(2(0MI8*2I)8" 3- ILS* =. IntCl L %omp. L.
?.+ ,--6!. 9ide S. =ames *naya" SKP(0P)W(0 *22I2K1(S 2)W*01 I81I/(8)KS P()PL(S *81 /0)KP
0I/72S" 5? *m. SocCy IntCl L. Proc. ,+3 3555!B @In general" the term indigenous is used in association with groups
46
that maintain a continuity of cultural identity with historical communities that suffered some form of colonial invasion"
and that by virtue of that continuity of cultural identity continue to distinguish themselves from others.@
93<+:
%atherine =. Iorns" I81I/(8)KS P()PL(S *81 S(LF 1(2(0MI8*2I)8B %7*LL(8/I8/ S2*2(
S)E(0(I/82$" ,6 %ase W. 0es. =. IntCl L. 355 355,!.
93<<:
Federico Len;erini" @S)E(0(I/82$ 0(EISI2(1B I82(08*2I)8*L L*W *81 P*0*LL(L S)E(0(I/82$ )F
I81I/(8)KS P()PL(S"@ 6, 2e'. IntCl L.=. 3++ ,--<!. 9ide %hristopher =. Fromher;" I81I/(8)KS P()PL(SC
%)K02SB (/*LI2*0I*8 =K0I1I%*L PLK0*LISM" S(LF#1(2(0MI8*2I)8" *81 27( K8I2(1 8*2I)8S
1(%L*0*2I)8 )8 27( 0I/72S )F I81I/(8)KS P()PL(S" 3+< K. Pa. L. 0ev. 3?63 ,--.!B @While *ustralia and
the Knited States made much of the distinction between Mself#governmentC and Mself#determinationC on September 3?"
,-->" the K.S. statement to the K8 on May 3>" ,--6" seems to use these two concepts interchangeably. *nd" indeed"
under the 10IP 91eclaration on the 0ights of Indigenous Peoples:" all three terms should be considered virtually
synonymous. Self#determination under the 10IP means Minternal self#determinationC when read in conjunction with
*rticle 6<" and Mself#government"C articulated in *rticle 6" is the core of the Mself#determination.C@
93<>:
1(FI8I8/ 27( *PP0)*%7 *81 *1MI8IS20*2IE( S20K%2K0( F)0 /)E(08M(82CS %)MP0(7(8SIE(
P(*%( (FF)02S" September 3+" 355?.
93<.:
6<< Phil. 6.," +35#+,- ,--6!.
93<5:
%)8S2I2K2I)8" *rticle EII" Sec. 3..
93>-:
4irsti Samuels" P)S2#%)8FLI%2 P(*%(#AKIL1I8/ *81 %)8S2I2K2I)8#M*4I8/" < %hi. =. IntCl L. <<? ,--<!.
93>3:
%hristine Aell" Peace *greementsB 27(I0 8*2K0( *81 L(/*L S2*2KS" 3-- *m. =. IntCl L. ?>? ,--<!.
93>,:
%)8S2I2K2I)8" *rticle O" Sections 3+#,3.
93>?:
III 0ecord" %onstitutional %ommission" 3.- *ugust 33" 35.<!.
93>6:
3<+ Phil. ?-? 35><!.
93>+:
Id. at 63,.
93><:
Id. at 63?.
93>>:
/.0. 8o. 3>63+?" )ctober ,+" ,--<" +-+ S%0* 3<-" ,<6#,<+.
93>.:
%)8S2I2K2I)8" *rt. EII" Sec. +.
93>5:
*rticle EI" Section ,+ 3! of the %onstitution states as followsB @2he %ongress may not increase the appropriations
recommended by the President for the operation of the /overnment as specified in the budget. 2he form" content" and
manner of preparation of the budget shall be prescribed by law.@
93.-:
Prosecutor $& =allon and =amara 9%ase 8o. S%SL#,--6#3+#*0>,(!" S%SL#,--6#3<#*0>,(!" March 3?" ,--6:.
93.3:
35>6 I.%.=. ,+?" 35>6 WL ? I.%.=.!.
93.,:
M. =anis and =. 8oyes" I82(08*2I)8*L L*W" %*S(S *81 %)MM(82*0$" ?
rd
ed. ,.- ,--<!.
93.?:
35.< I.%.=. ++6" 35.< WL 3+<,3 I.%.=.!" 1ecember ,," 35.<.
47
93.6:
Planas $& 5-,*0*5# 3+3 Phil. ,3>" ,65 35>?!.
&EPARATE CONC#RRNG OPNON
P#NO, #.$.8
It is the duty of the government to see& a just" comprehensive and enduring peace with any rebel group but the search
for peace must always be in accord with the %onstitution. *ny search for peace that undercuts the %onstitution must
be struc& down. Peace in breach of the %onstitution is worse than worthless.
. HA?torAcCD Root?
* historical perspective of our Muslim problem is helpful.
From time immemorial" an enduring peace with our Muslim brothers and sisters in Mindanao has eluded our grasp.
)ur Muslim problem e'ploded in March of 35<. when Muslim trainees were massacred by army officers at %orregidor.
*bout 3.- Muslim trainees had been recruited in the previous year as a part of a covert force named )abidah"
93:
allegedly formed
to wrest away Sabah from Malaysia. 2he trainees were massacred when they reportedly protested their unbearable
training and demanded the return to their home.
9,:
2he )abidah Massacre fomented the formation of Muslim groups
clamoring for a separate Islamic state. )ne of these groups was the Muslim Independence Movement MIM!" founded
by the then /overnor of %otabato" 1atu Kdtog Matalam.
9?:
*nother was the 8urul Islam" led by 7ashim Salamat.
)n September ,3" 35>, Martial Law was declared by President Ferdinand (. Marcos. *mong the reasons cited to
justify martial law were the armed conflict between Muslims and %hristians and the Muslim secessionist movement in
the Southern Philippines.
96:
2he imposition of martial law drove some of the Muslim secessionist movements to the
underground. )ne of them was the Moro 8ational Liberation Front M8LF! headed by 8ur Misuari. In 35>6" the M8LF
shot to prominence" when the )rgani;ation of Islamic %onference )I%! officially gave it recognition. 1uring the +
th

I%FM" they strongly urged @the Philippines /overnment to find a political and peaceful solution through negotiation with
Muslim leaders" particularly with representatives of the M8LF in order to arrive at a just solution to the plight of the
Filipino Muslims within the framewor& of national sovereignty and territorial integrity of the Philippines@J and recogni;ed
@the problem as an internal problem with the Philippine /overnment to ensure the safety of the Filipino Muslims and
the preservation of their liberties in accordance with the Kniversal 1eclaration of 7uman 0ights.@
9+:
In 1ecember 35><" the Philippine government and the M8LF under the auspices of the )I% started their peace
negotiation in 2ripoli" Libya. It bore its first fruit when on =anuary ,-" 35>>" the parties signed the 2ripoli *greement in
Hamboanga %ity in the presence of the )I% 0epresentative.
President Marcos immediately implemented the 2ripoli *greement. 7e issued Presidential Proclamation 8o. 3<,."
@1eclaring *utonomy in Southern Philippines.@ * plebiscite was conducted in the provinces covered under the 2ripoli
*greement to determine the will of the people thereat. Further" the legislature enacted Aatasang Pambansa Alg. ,-"
@Providing for the )rgani;ation of Sangguniang Pampoo& 0egional Legislative *ssembly! in (ach of 0egions IO and
OII.@ President Marcos then ordered the creation of *utonomous 0egion IO and OII.
In the meanwhile" the M8LF continued enhancing its international status. It was accorded the status of an ob?erHer in
2ripoli" Libya during the .
th
I%FM. In the 3+
th
I%FM at SanaCa" $emen" in 35.6" the M8LFCs status was further elevated
from a mere Mlegitimate representativeC to M?oDe DeGAtAECte re=re?e:tCtAHeO of the Aangsamoro people.
9<:
In *pril 35>>" the peace tal&s between the /overnment of the 0epublic of the Philippines /0P! and M8LF 2al&s
collapsed. Schism split the M8LF leadership. T<e Arreco:cADCbDe FA;;ere:ce? bet>ee: N@r *A?@CrA C:F HC?<AE
48
&CDCECt DeF to t<e ;orECtAo: o; t<e *oro ?DCEAc $AberCtAo: !ro:t .*$!/, <eCFeF bB HC?<AE &CDCECt. 2hus" the
Maguindanao#led MILF" parted ways with the 2ausug#led M8LF.
In 35.<" the People Power 0evolution catapulted %ora;on %. *Duino to the Presidency. Forthwith" she ordered the
peace tal&s with the M8LF to resume. 2he 35.> %onstitution was ratified by the people. It provided for the creation of
the *utonomous 0egion of Muslim Mindanao through an act of %ongress. Aut again the tal&s with the M8LF
floundered in May 35.>.
9>:
Ae that as it may" it was during President *DuinoCs governance that a culture of peace
negotiations with the rebellious M8LF and MILF was cultivated.
9.:
2hus" the *utonomous 0egion of Muslim Mindanao
*0MM! was created through 0epublic *ct 8o. <>?6. 2he law too& effect on *ugust 3" 35.5.
2hen came the presidency of President Fidel E. 0amos. 7e issued on September 3+" 355?" ('ecutive )rder 8o." 3,+
(.). 3,+! which provided for a comprehensive" integrated and holistic peace process with the Muslim rebels. (.).
3,+ created the )ffice of the Presidential *dviser on the Peace Process to give momentum to the peace tal&s with the
M8LF.
In 355<" as the /0P#M8LF peace negotiations were successfully winding down" the government prepared to deal with
the MILF problem. Formal peace tal&s started on =anuary of 355>" towards the end of the 0amos administration. 2he
Auldon %easefire *greement was signed in =uly 355>
95:
but time ran out for the negotiations to be completed.
President =oseph (strada continued the peace tal&s with the MILF. 2he tal&s" however" were limited to cessation of
hostilities and did not gain any headway. President (strada gave both sides until 1ecember 3555 to finish the peace
process.
93-:
2hey did not meet the deadline. 2he year ,--- saw the escalation of acts of violence and the threats to the
lives and security of civilians in Southern Mindanao. President (strada then declared an @all#out war@ against the MILF.
933:
7e bowed out of office with the @war@ unfinished.
2hereafter" President /loria Macapagal *rroyo assumed office. Peace negotiations with the MILF were immediately
set for resumption.
('ecutive )rder 8o. ?" was issued @1efining Policy and *dministrative StructureB For /overnmentCs %omprehensive
Peace (fforts.@ )n March ,6" ,--3" a /eneral Framewor& for the 0esumption of Peace 2al&s between the /0P and
the MILF was signed. 0epublic *ct 8o. 5-+6
93,:
was also enacted on March ?3" ,--3 and too& effect on *ugust 36"
,--3 to strengthen and e'pand the *utonomous 0egion of Muslim Mindanao. 2hrough the )rganic *ct of ,--3" si'
municipalities in Lanao del 8orte voted for inclusion in the *0MM.
)n =une ,," ,--3" the ancestral domain aspect of the /0P#MILF 2ripoli *greement was signed in Libya. Several
rounds of e'ploratory tal&s with the MILF followed. Knfortunately" on *pril ," ,--?" 1avao was twice bombed. *gain"
the peace tal&s were cancelled and fighting with the MILF resumed. )n =uly 35" ,--? the /0P and the MILF agreed
on @mutual cessation of hostilities@ and the parties returned to the bargaining table. 2he parties discussed the problem
of ancestral domain" divided into four strandsB concept" territory" resources" and governance.
)n February >" ,--<" the 3-
th
round of ('ploratory 2al&s between the /0P and the MILF ended. 2he parties issued a
joint statement of the consensus points of the *ncestral 1omain aspect of /0P#MILF 2ripoli *greement on Peace of
=une ,," ,--3. 2he =oint Statement provides thatB
@*mong the consensus points reached wereB
ST =oint determination of the scope of the Aangsamoro homeland based on the technical maps and data submitted by
both sidesJ
ST Measures to address the legitimate grievances of the Aangsamoro people arising from the unjust dispossession
andIor marginali;ationJ
ST Aangsamoro peopleCs right to utili;e and develop their ancestral domain and ancestral landsJ
ST (conomic cooperation arrangements for the benefit of the entire Aangsamoro people.@
49
)n =uly ,>" ,--." C 'oA:t &tCteEe:t o: t<e *eEorC:F@E o; AGreeEe:t o: A:ce?trCD "oECA: .*OA)A"/ >C?
?AG:eF by %hairperson 0odolfo %. /arcia on behalf of the /0P Peace Panel" and Mohagher IDbal on behalf of the
MILF Panel. In the =oint Statement" it was declared that the final draft of the M)*#*1 has already been A:AtACDeF. It
was announced that @both sides reached a consensus to initial the final draft pending its o;;AcACD signing by the
%hairmen of the two peace panels in early *ugust ,--." in Putrajaya" Malaysia.@
93?:
2he =oint Statement triggered the filing of the petitions at bar. 2hese Petitions" sought among others" to restrain the
signing of the M)*#*1. )n *ugust 6" ,--." a day before the intended signing of the initialed M)*#*1" this %ourt
issued a 2emporary 0estraining )rder stopping the signing of the M)*#*1. Several petitions#in#intervention were also
filed praying for the same relief. )n *ugust ." ,--. and September 3" ,--." the respondents through the Solicitor
/eneral" submitted official copies of the initialed M)*#*1 to the %ourt and furnished the petitioners and petitioners#in#
intervention with copies of the same.
*ll the petitions were heard by the %ourt in three separate days of oral arguments. In the course of the arguments" the
Solicitor /eneral informed the %ourt that the M)*#*1 will not be signed @in its present form or any other form.@
936:

2hereafter" the government Peace Panel was dismantled by the President.
. PetAtAo:? ?<o@DF be "ecAFeF o: t<e *erAt?
2he first threshold issue is whether this %ourt should e'ercise its power of judicial review and decide the petitions at
bar on the merits.
I respectfully submit that the %ourt should not avoid its constitutional duty to decide the petitions at bar on their merit in
view of their transcendental importance. 2he subject of review in the petitions at bar is the co:F@ct o; t<e =eCce
=roce?? >At< t<e *$! ><Ac< c@DEA:CteF A: t<e *OA)A". 2he constitutionality of the conduct of the e:tAre peace
process and not just the M)*#*1 should go under the scalpel of judicial scrutiny. 2he review should not be limited to
the initialed M)*#*1 for it is EereDB t<e =roF@ct of a constitutionally flawed process of negotiations with the MILF.
Let us revisit the steps that led to the contested and controversial M)*#*1. Peace negotiations with the MILF
commenced with the e'ecution of ceasefire agreements. 2he watershed event" however" occurred in ,--3" with the
issuance of ('ecutive )rder 8o. ?
93+:
entitled @1efining Policy and *dministrative Structure for /overnmentCs
%omprehensive Peace (fforts.@ /overnment Peace 8egotiating Panels were immediately constituted to negotiate
peace with rebel groups" which included the MILF. &AG:A;AcC:tDB, E9ec@tAHe OrFer No. 3 =roHAFe? t<Ct A: t<e
=@r?@At o; ?ocACD, eco:oEAc C:F =oDAtAcCD re;orE?, CFEA:A?trCtAHe CctAo:, :e> DeGA?DCtAo: or eHe: co:?tAt@tAo:CD
CEe:FEe:t? ECB be reK@AreF.
93<:
Section 6 of ('ecutive )rder 8o. ? states" $izB
S(%2I)8 6. 2he Si' Paths to Peace. ## 2he components of the comprehensive peace process comprise the
processes &nown as the @Paths to Peace@. 2hese component processes are interrelated and not mutually e'clusive"
and must therefore be pursued simultaneously in a coordinated and integrated fashion. 2hey shall include" but may not
be limited to" the followingB
a. PK0SKI2 )F S)%I*L" (%)8)MI% *81 P)LI2I%*L 0(F)0MS. 2his component involves the vigorous
implementation of various policies" reforms" programs and projects aimed at addressing the root causes of internal
armed conflicts and social unrest. T<A? ECB reK@Are CFEA:A?trCtAHe CctAo:, :e> DeGA?DCtAo: or eHe: co:?tAt@tAo:CD
CEe:FEe:t?.
' ' ' '
c. P(*%(FKL" 8(/)2I*2(1 S(22L(M(82 WI27 27( 1IFF(0(82 0(A(L /0)KPS. 2his component involves
the conduct of face#to#face negotiations to reach peaceful settlement with the different rebel groups. It also involves
the effective implementation of peace agreements. (mphasis supplied!
('ecutive )rder 8o. ?" was later amended by (.). 8o. +++"
93>:
and was followed by the 2ripoli Peace *greement of
,--3. 2he 2ripoli Peace *greement of ,--3 became the basis for several rounds of e'ploratory tal&s between the
/0P Peace Panel and the MILF. 2hese e'ploratory tal&s resulted in the signing of the =oint Statements of the /0P
50
and MILF peace panels to affirm commitments that implement the 2ripoli *greement of ,--3" including the ancestral
domain aspect. T<e A??@C:ce o; t<e 'oA:t &tCteEe:t? c@DEA:CteF A: t<e A:AtACDA:G o; t<e *OA)A".
93.:
It is crystal clear that the initialing of the M)*#*1 is but the evidence of the government peace negotiating panelCs
assent to the terms contained therein. ; t<e *OA)A" A? co:?tAt@tAo:CDDB A:;ArE, At A? becC@?e t<e co:F@ct o; t<e
=eCce =roce?? At?eD; A? ;DC>eF. It is the constitutional duty of the %ourt is to determine whether there has been a
grave abuse of discretion amounting to lac& or e'cess of jurisdiction on the part of the government peace negotiating
panel A: t<e co:F@ct o; t<e =eCce :eGotACtAo:? >At< t<e *$!. T<e Co@rt ?<o@DF :ot re?trAct At? reHAe> o: t<e
HCDAFAtB o; t<e *OA)A" ><Ac< A? b@t t<e e:F =roF@ct o; t<e ;DC>eF co:F@ct o; t<e =eCce :eGotACtAo: >At< t<e
*$!.
ReK@AreEe:t? o; RA=e:e?? C:F
*oot:e?? Cre :ot bCr? to reHAe>
In contending that this %ourt should refrain from resolving the merits of the petitions at bar" two principal defenses
were deployed by the Solicitor /eneralB the issues raised for resolution are not ripe for adjudication and regardless of
their ripeness" are moot.
With due respect" the defenses cannot be sustained. 2o contend that an issue is not ripe for adjudication is to invo&e
prematurityJ
935:
that the issue has not reached a state where judicial intervention is necessary" hence" there is in reality
no actual controversy. )n the other hand" to urge that an issue has become moot concedes that judicial intervention
was once proper but subseDuent developments ma&e further judicial action unnecessary. 2ogether" mootness and
ripeness act as a two#pronged pincer" sDuee;ing the resolution of controversies within a narrow timeframe.
9,-:
!Ar?t, t<e A??@e? Ct bCr Cre rA=e ;or re?oD@tAo:. In O<Ao !ore?trB A??O: :c. H. &AerrC CD@b"
9,3:
the following factors
were identified as indicative of the ripeness of a controversyB
3. Whether delayed review would cause hardship to the plaintiffsJ
,. Whether judicial intervention would inappropriately interfere with further administrative actionJ
?. Whether the %ourt would benefit from further factual development of the issues presentedJ
Knderlying the use of the foregoing factors is ;Ar?t" the setting of a threshold for review and ?eco:F" judicial application
of the threshold to the facts e'tant in a controversy. I respectfully submit that ><ere C co:troHer?B co:cer:?
;@:FCEe:tCD co:?tAt@tAo:CD K@e?tAo:?" the threshold E@?t be CFI@?teF to allow judicial scrutiny" A: orFer t<Ct t<e
A??@e? ECB
be re?oDHeF Ct t<e eCrDAe?t ?tCGe be;ore C:Bt<A:G ArreHer?AbDe A? @:FertCLe: @:Fer coHer o; C: @:co:?tAt@tAo:CD
Cct. Schwart; cites o:e HAtCD co:?AFerCtAo: in determining ripeness" $izB
In dealing with ripeness" one must distinguish between statutes and other acts that are ?eD;)e9ec@tA:G C:F t<o?e t<Ct
Cre :ot. ; C ?tCt@te A? ?eD; e9ec@tA:G, At A? rA=e ;or c<CDDe:Ge C? ?oo: C? At A? e:CcteF. For such a statute to be
subject to judicial review" it is not necessary that it be applied by an administrator" a prosecutor" or some other
enforcement officer in a concrete case.
9,,:
*lthough Schwart; employs the term @statute"@ he Dualifies that the principle enunciated applies to other governmental
acts as well.
9,?:
Prescinding from these parameters" At A? eHAFe:t t<Ct t<e Co@rt A? co:;ro:teF >At< C *OA)A" t<Ct A? <eCHADB DCFe:
>At< ?eD;)e9ec@tA:G coE=o:e:t?. Far from the representation of the Solicitor /eneral" t<e *OA)A" A? :ot C Eere
coDDectAo: o; co:?e:?@? =oA:t?"
9,6:
still bereft of any legal conseDuence. 2he commitments made by the government
panel under the M)*#*1 can be divided into 3! those which are ?eD;)e9ec@torB or are immediately effective by the
terms of the M)*#*1 alone" ,! those with a period or which are to be effective within a stipulated time" and ?! those
that are conditional or whose effectivity depends on the outcome of a plebiscite.
Let us cast an eye on the ?eD; e9ec@torB =roHA?Ao:? of the M)*#*1 which will demolish the argument of the
respondents that the issues in the petitions at bar are not ripe for adjudication.
51
2he M)*#*1 provides that @the Parties affirm that the core of the A=( shall constitute the present geographic area of
the *0MM" including the municipalities of Aaloi" Munai" 8unungan" Pantar" 2agoloan and 2ang&al in the province of
Lanao del 8orte that voted for inclusion in the *0MM during the ,--3 plebiscite.@
2he M)*#*1 then proceeds to enumerate the powers that the A=( possesses within its area. 2he A=( is granted
powers of governance which it can e'ercise without need of amendments to be made to the %onstitution or e'isting
law or without imposing any condition whatsoever.
2he M)*#*1 also gives the A=( the unconditional right to participate in international meetings and events" e.g."
*S(*8 meetings and other speciali;ed agencies of the Knited 8ations.
9,+:
It grants A=( the right to participate in
Philippine official missions and delegations that are engaged in the negotiation of border agreements or protocols for
environmental protection" eDuitable sharing of incomes and revenues" in addition to those of fishing rights.
9,<:
*gain"
these rights are given to the A=( without imposing prior conditions such as amendments to the %onstitution" e'isting
law or the enactment of new legislation.
8e't" let us go to =roHA?Ao:? o; t<e *OA)A" >At< C =erAoF which will further demonstrate the lac& of merit of
respondentsC posture that the petitions at bar are not ripe for adjudication. 2he M)*#*1 provides that @without
derogating from the reDuirements of prior agreements
9,>:
" the /overnment stipulates to conduct and deliver" within
twelve 3,! months
following the signing of the Memorandum of *greement on *ncestral 1omain" a plebiscite covering the areas as
enumerated in the list and depicted in the map as %ategory * ' ' ' the Parties shall endeavor to complete negotiations
and resolve all outstanding issues on the %omprehensive %ompact within fifteen 3+! months from signing of the M)*#
*1.@
9,.:
)nce more" it is evident that no conditions were imposed with respect to the conduct of a plebiscite within
twelve months following the signing of the M)*#*1. 2he provision star&ly states that within twelve months" the
government will conduct and deliver a plebiscite covering areas under %ategory * of the M)*#*1.
We now come to respondentsC argument on Eoot:e??. In determining whether a case has been rendered moot"
courts loo& at the development of events to ascertain whether the petitioner ma&ing the constitutional challenge is
confronted with a co:tA:@A:G <CrE or C ?@b?tC:tACD =ote:tACD o; <CrE. Mootness is sometimes viewed as @the
doctrine of standing set in a time frameB 2he reDuisite personal interest must e'ist at the commencement of the
litigation and must continue throughout its e'istence.@
9,5:
Stated otherwise" an actual controversy must be e'tant at all
stages of judicial review" not merely at the time the complaint is filed.
9?-:
0espondents insist that the petitions at bar are moot for three reasonsB 3! the petitioners 8orth %otabato and
Hamboanga have already been furnished copies of the M)*#*1J ,! the ('ecutive Secretary has issued a
Memorandum that the government will not sign the M)*#*1 and" ?! the /0P Peace Panel has been dissolved by the
President.
2hese grounds are barren grounds. For one" the press statements of the Presidential *dviser on the Peace Process"
/en. 7ermogenes (speron" =r." are clear that the M)*#*1 will still be used as a ECIor re;ere:ce in future
negotiations.
9?3:
For another" the MILF considers the M)*#*1 a @done deal"@
9?,:
hence" ready for implementation. )n
the other hand" the peace panel may have been temporarily dismantled but the structures set up by the ('ecutive and
their guidelines which gave rise to the present controversy remain intact. -At< CDD t<e?e reCDAtAe?, t<e =etAtAo:? Ct bCr
;CDD >At<A: t<Ct e9ce=tAo:CD cDC?? o; cC?e? ><Ac< o@G<t to be FecAFeF Fe?=Ate t<eAr Eoot:e?? becC@?e t<e
coE=DCA:eF @:co:?tAt@tAo:CD Cct? Cre JcC=CbDe o; re=etAtAo: Bet eHCFA:G reHAe>.J
9??:
2his >eDD)Ccce=teF e9ce=tAo: to t<e :o:)reHAe>CbADAtB o; Eoot cC?e? was first enunciated in the case of &o@t<er:
PCcA;Ac TerEA:CD Co. H. CC.
9?6:
2he Knited States Supreme %ourt held that a case is not moot where interests of a
public character are asserted under conditions that may be immediately repeated" merely because the particular order
involved has e'pired.
In the petitions at bar" one need not butt heads with the Solicitor /eneral to demonstrate the numerous constitutional
infirmities of the M)*#*1. 2here is no need to iterate and reiterate them. Suffice to stress that it is because of these
52
evident breaches" that the M)*#*1 reDuires the present %onstitution to undergo radical revisions. $et" the unblushing
threat is made that the M)*#*1 which shattered to smithereens all respect to the %onstitution >ADD co:tA:@e to be a
reference point in future peace negotiations with the MILF. In fine" the M)*#*1 is a constitutional nightmare that will
come and torment us again in the near future. It must be slain now. It is not moot.
Let us adhere to the orthodo' thought that once a controversy as to the application of a constitutional provision is
raised before this %ourt" it becomes a legal issue which the %ourt is hide#bound to decide.
9?+:
Supervening events"
whether contrived or accidental" cannot prevent the %ourt from rendering a decision if there is a grave violation of the
%onstitution has already been committed or the threat of being committed again is not a hypothetical fear.
9?<:
It is the
function of judicial review to uphold the %onstitution at all cost or we forfeit the faith of the people.
. T<e "eHACtAo: ;roE t<e *N$!
*oFeD o; P@r?@A:G PeCce >At<
RebeD? A? :e9=DAcCbDe
2he M8LF model in dealing with rebels which culminated in the Peace *greement of 355<" was free from any infirmity
because it respected the metes and bounds of the %onstitution. While the M8LF model is ostensibly based on the
2ripoli *greement of 35><" its implementation was in perfect accord with Philippine laws. 2he implementation of the
2ripoli *greement of 35>< came in two phasesB the first" under the legislative power of then President Marcos and the
second" under the provisions of *rticle O of the 35.> %onstitution and its implementing legislation" 0epublic *ct 8o.
<>?6.
9?>:
Knder President Marcos" autonomy in the affected provinces was recogni;ed through Presidential Proclamation
8o.3<,.. It declared autonomy in 3? provinces and constituted a provisional government for the affected areas. 2he
proclamation was followed by a plebiscite and the final framewor& for the autonomous region was embodied in
Presidential 1ecree 8o.3<3..
2he establishment of the autonomous region under P.1. 3<,. was co:?tAt@tAo:CDAMeF bB t<e coEEA??Ao:er? A: t<e
1981 Co:?tAt@tAo: as shown by the following e'change of viewsB
M0. *L)82)B Madam President" I have stated from the start of our consideration of this *rticle on Local /overnments
that the autonomous region e'ists now in this country. 2here is a de facto e'istence of an autonomous government in
what we call now 0egions IO and OII. 0egion IO is composed of the provinces of 2awi#2awi" Sulu" Aasilan"
Hamboanga %ity" Hamboanga del Sur and Hamboanga del 8orte" including all the component cities in the provinces.
0egion OII is composed of the Provinces of Lanao del 8orte" Lanao del Sur" Maguindanao" Sultan 4udarat and 8orth
%otabato. 2his autonomous region has its central governmental headDuarters in Hamboanga %ity for 0egion IO and in
%otabato %ity for 0egion OII. In fact" it is stated by %ommissioner )ple that it has an e'ecutive commission and a
legislative assembly.
M0. 1( %*S20)B Madam President.
M0. *L)82)B 2hese two regions have been organi;ed by virtue of P.1. 8o. 3<3. of President Marcos" as amended
by P.1. 8o. 3.6?.
M0. 1( %*S20)B Madam President.
M0. *L)82)B If the /entleman will bear with me" I will e'plain to him. 2hat is why there is a de facto autonomous
government e'isting in Mindanao
M0. 1( %*S20)B Madam President.
27( P0(SI1(82B May we please allow %ommissioner *lonto to finish his remar&s before any interruptionN
M0. 1( %*S20)B $es Madam President.
53
M0. *L)82)B Madam President" this autonomous region is recogni;ed by the present regime for the very reason that
the present regime is now in the process of a negotiation with the Moro 8ational Liberation Front. In a way" what we
are doing is to give constitutional basis for the President of this country today to proceed with the negotiation with the
Moro 8ational Liberation Front.
27( P0(SI1(82B %ommissioner K&a is recogni;ed.
M0. K4*B Madam President" not only that. President %ora;on %. *Duino has appointed Mr. *lbert 2ugum as the
%hairman of 0egion IO and Mr. 1atu Ha&aria %andau as chairman of 0egion OII. 2hey are doing their wor& well right
now. So there are two recogni;ed autonomous regions. 2hey have also a complete regional assembly as the
legislative body. So" it is only a matter of putting this in the %onstitution.
27( P0(SI1(82B So" what is before the body is the proposed amendment on Line 33 of Section 3.
%ommissioner de %astro is recogni;ed.
M0. 1( %*S20)B Madam President" if there is now an autonomous region in Mindanao and if" according to the
7onorable )ple" this has the recognition of the central government" what then is the use of creating autonomous
regions in Muslim Mindanao and going through the process of a plebiscite and enacting an organic actN
My amendment is simply to clarify the term @Muslim Mindanao.@ I really did not e'pect that this will go this far ### that it
is being placed in the %onstitution" that it is a fait accompli and that all we have to do here is say @amen@ to the whole
thing and it we do not say @amen"@ they will still continue to be autonomous regions. I insist on my amendment" Madam
President.
M0. )PL(B May I provide more information to %ommissioner de %astro on this matter.
First of all" we have to correct the misimpression that the autonomous regions" such as they now e'ist in Mindanao" do
not enjoy the recognition of the central government. Secondly" may I point out that the autonomy e'isting now in
0egions IO and OII is a very imperfect &ind of autonomy. We are not satisfied with the legal sufficiency of these regions
as autonomous regions and that is the reason the initiative has been ta&en in order to guarantee by the %onstitution
the right to autonomy of the people embraced in these regions and not merely on the sufferance of any e'isting or
future administration. It is a right" moreover" for which they have waged heroic struggles" not only in this generation but
in previous eras and" therefore" ><Ct >e ?eeL A? co:?tAt@tAo:CD =erEC:e:ce ;or t<A? rAG<t.
May I also point out" Madam President" that the 2ripoli *greement was negotiated under the aegis of foreign powers.
8o matter how friendly and sympathetic they are to our country" this is under the aegis of the 6,#nation Islamic
%onference. Should our brothers loo& across the seas to a conclave of foreign governments so that their rights may be
recogni;ed in the %onstitutionN 1o they have to depend upon foreign sympathy so that their right can be recogni;ed in
final" constitutional and durable form.
27( P0(SI1(82B %ommissioner )ple" the consensus here is to grant autonomy to the Muslim areas of MindanaoN
M0. )PL(B $es.(mphasis supplied!
9?.:
CDeCrDB, t<e EC:FCte ;or t<e creCtAo: o; t<e AR** A? FerAHeF =rA:cA=CDDB ;roE t<e 1981 Co:?tAt@tAo:. 2hereafter"
*00M was given life by 0epublic *ct 8o. <>?6"
9?5:
the )rganic *ct of the *0MM. )ur e'ecutive officials were guided
by and did not stray away from these legal mandates at the negotiation and e'ecution of the Peace *greement with
the M8LF in 355<. Without ifs and buts" its Whereas %lauses affirmed our sovereignty and territorial integrity and
completely respected our %onstitution.
96-:
: ?tCrL co:trC?t, t<e =eCce =roce?? >At< t<e *$! FrC>? At? EC:FCte =rA:cA=CDDB ;roE E9ec@tAHe OrFer No. 3.
2his e'ecutive order provided the basis for the e'ecution of the 2ripoli *greement of ,--3 and thereafter" the M)*#
*1. "@rA:G t<e ><oDe =roce??, t<e GoHer:Ee:t =eCce :eGotACtor? co:F@cteF t<eE?eDHe? ;ree ;roE t<e
54
?trAct@re? o; t<e Co:?tAt@tAo:. 2hey played fast and loose with the doCs and dontCs of the %onstitution. 2hey acted as
if the grant of e'ecutive power to the President allows them as agents to ma&e agreements with the MILF in violation
of the %onstitution. 2hey acted as if these violations can anyway be cured by committing that the sovereign people will
change the %onstitution to conform with the M)*#*1. 2hey forgot that the %onstitution grants power but also sets
some impotence on power.
V. T<e E9ercA?e o; E9ec@tAHe Po>er A?
&@bIect to t<e Co:?tAt@tAo:
%learly" the respondents grossly misunderstood and patently misapplied the e'ecutive powers of the President.
2he MILF problem is a problem of rebellion penali;ed under the 0evised Penal %ode.
963:
2he MILF is but a rebel group.
It has not acDuired any belligerency status. 2he rebellion of the MILF is recogni;ed e'pressly by (.). 8o. ?
96,:
as well
as by (.). 8o. +++.
96?:
2he PresidentCs powers in dealing with rebellion are spelled out in *rticle EII" section 3. of the
%onstitution" $izE
2he President shall be the %ommander#in#%hief of all armed forces of the Philippines and whenever it becomes
necessary" he may call out such armed forces to prevent or suppress lawless violence" invasion or rebellion. In case of
invasion or rebellion" when the public safety reDuires it" he may" for a period not e'ceeding si'ty days" suspend the
privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty#eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus" the
President shall submit a report in person or in writing to the %ongress. 2he %ongress" voting jointly" by a vote of at
least a majority of all its Members in regular or special session" may revo&e such proclamation or suspension" which
revocation shall not be set aside by the President. Kpon the initiative of the President" the %ongress may" in the same
manner" e'tend such proclamation or suspension for a period to be determined by the %ongress" if the invasion or
rebellion shall persist and public safety reDuires it.
2he %ongress" if not in session" shall" within twenty#four hours following such proclamation or suspension" convene in
accordance with its rules without need of a call.
2he Supreme %ourt may review" in an appropriate proceeding filed by any citi;en" the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the e'tension thereof"
and must promulgate its decision thereon within thirty days from its filing.
* state of martial law does not suspend the operation of the %onstitution" nor supplant the functioning of the civil courts
or legislative assemblies" nor authori;e the conferment of jurisdiction on military courts and agencies over civilians
where civil courts are able to function" nor automatically suspend the privilege of the writ of habeas corpus.
2he suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion
or offenses inherent in" or directly connected with" invasion.
1uring the suspension of the privilege of the writ of habeas corpus" any person thus arrested or detained shall be
judicially charged within three days" otherwise he shall be released.
2hese are the well crafted commander#in#chief powers of the President. 2hey enumerate with e'actitude the powers
which the President should use in dealing with rebellion. 2hey are graduated in degrees. 2he strongest of these
powers is the power to declare martial law and worthy to note" its e'ercise is subject to restraints. Aut more important"
all these commander#in#chief powers can only be used to Duell the rebellion. 2hey cannot be utili;ed to dismember the
State or to create a state within our State and hand it over to the MILF rebels.
: FeCDA:G >At< t<e *$! rebeDDAo:, t<e Pre?AFe:t ECB, <o>eHer, o=t :ot to @?e ;orce b@t :eGotACte =eCce >At<
t<e *$!. Kndoubtedly" the President as %hief ('ecutive can negotiate peace with rebels" li&e the MILF. *rticle EII"
section 3 of the %onstitution vests in the President the entire panoply of e'ecutive power" to reach peace with rebels.
B@t @:Fo@bteFDB too, t<e e9ercA?e o; e9ec@tAHe =o>er to ?ec@re =eCce >At< rebeD? A? DAEAteF bB t<e
Co:?tAt@tAo:.
55
*ll these are due to the preeminent principle that our government is fundamentally one of limited and enumerated
powers. *s well stated in A:GCrC H. EDectorCD CoEEA??Ao:,
966:
$izB
Aut in the main" the %onstitution has bloc&ed out with deft stro&es and in bold lines" allotment of power to the
e'ecutive" the legislative and the judicial departments of the government. 2he overlapping and interlacing of functions
and duties between the several departments" however" sometimes ma&es it hard to say just where the one leaves off
and the other begins. In times of social disDuietude or political e'citement" the great landmar&s of the %onstitution are
apt to be forgotten or marred" if not entirely obliterated. In cases of conflict" the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
In fine" there is no power in the %onstitution that can run riot. 2here is no power in the %onstitution that is unbounded.
2here is no power in the %onstitution that can be e'ercised if it will destroy the %onstitution. For all powers in the
%onstitution are designed to preserve the %onstitution.
In other words" the President as %hief ('ecutive can negotiate peace with the MILF but it is peace that will insure that
our laws are faithfully e'ecuted. 2he President can see& peace with the MILF but without crossing the parameters of
powers mar&ed in the %onstitution to separate the other branches of government to preserve our democracy. For even
in times of war" our system of chec&s and balances cannot be infringed.
96+:
More so in times where the only danger that
faces the State is the lesser danger of rebellion.
8eedless to stress" the power of the President to negotiate peace with the MILF is not plenary. While a considerable
degree of fle'ibility and breadth is accorded to the peace negotiating panel" the latitude has its limits #
# the %onstitution. 2he %onstitution was ordained by the sovereign people and its postulates may not be employed as
bCrGCA:A:G c<A=? without their prior consent.
V. T<e Co:?tAt@tAo: C? CoE=Cct o; t<e Peo=De
2he K@e?tAo: may be as&edB In the process of negotiating peace with the MILF" why cannot the ('ecutive commit to
do acts which are prohibited by the %onstitution and see& their ratification later by its amendment or revisionN
Many philosophical perspectives have been advanced in reply to this Duestion. $et" no theory has been as influential"
nor has been as authoritative" as the social contract theory"
96<:
articulated by =ohn Loc&e" $izB
For when any number of men have" by the consent of every individual" made a community" they have thereby made
that community one body" with a power to act as one body" which is only by the will and determination of the majorityB
for that which acts any community" being only the consent of the individuals of it" and it being necessary to that which
is one body to move one wayJ it is necessary the body should move that way whither the greater force carries it" which
is the consent of the majorityB or else it is impossible it should act or continue one body" one community" which the
consent of every individual that united into it" agreed that it shouldJ and so every one is bound by that consent to be
concluded by the majority. *nd therefore we see" that in assemblies" empowered to act by positive laws" where no
number is set by that positive law which empowers them" the act of the majority passes for the act of the whole" and of
course determines" as having" by the law of nature and reason" the power of the whole.
96>:
2he French philosopher" =ean =acDues 0osseau stressed the :o:)FeroGCbADAtB of this social contract" $izB
Aut the body politic or sovereign" deriving its e'istence only from the sanctity of the contract" can never bind itself"
even to others" in anything that FeroGCte? from the original act" such as alienation of some portion of itself" or
submission to another sovereign. 2o violate the act by which it e'ists would be to annihilate itselfJ and what is nothing
produces nothing.
96.:
1ean Eicente Sinco of the K.P. %ollege of Law articulated these precepts in his seminal wor&" Philippine Political 0aw#
$izE
*s adopted in our system of jurisprudence a constitution is a written instrument which serves as the fundamental law
of the state. In theory" it is the creation of the will of the people" who are deemed the source of all political powers. It
provides for the organi;ation of the essential departments of government" determines and limits their powers" and
prescribes guarantees to the basic rights of the individual.
965:
56
''''
Some authorities have also considered the constitution as a compact" an @agreement of the people" in their individual
capacities" reduced to writing" establishing and fi'ing certain principles for the government of themselves.@ 2his notion
e'presses the old theory of the social contract obligatory on all parties and reHocCbDe bB :o o:e A:FAHAF@CD or Gro@=
less than the majority of the peopleJ otherwise it will not have the attribute of law.
9+-:
(mphasis supplied!
: ?@E, t<ere A? :o =o>er :or A? t<ere C:B rAG<t to HAoDCte t<e Co:?tAt@tAo: o: t<e =Crt o; C:B o;;AcACD o;
GoHer:Ee:t. No o:e cC: cDCAE <e <C? C bDC:L c<ecL to HAoDCte t<e Co:?tAt@tAo: A: CFHC:ce C:F t<e =rAHADeGe to
c@re t<e HAoDCtAo: DCter t<ro@G< CEe:FEe:t o; At? =roHA?Ao:?. Re?=o:Fe:t?O t<e?A? o; HAoDCte :o>, HCDAFCte DCter
ECLe? C b@rDe?K@e o; t<e Co:?tAt@tAo:.
I vote to grant the petitions.
93:
2he formation of the commando unit was supposedly for a destabili;ation plan by the Marcos government aimed at
Sabah. 2he young Muslim recruits were to be mobili;ed for operations against Sabah and subseDuently claim it from
Malaysia.
9,:
2.=.S. /eorge" Re$olt in ,indanaoE 'he Rise of Islam in Philippine Politics 35.-! and %esar Majul" 'he
5ontemporar" ,uslim ,o$ement in the Philippines 35.+!" cited in2homas M. Mc4enna" ,uslim Rulers and Rebels#
*$er"da" Politics and .rmed Separatism in Southern Philippines# p. 363 355.!.
9?:
2homas M. Mc4enna" ,uslim Rulers and Rebels# *$er"da" Politics and .rmed Separatism in Southern Philippines#
p. 366 355.!.
96:
Ferdinand Marcos" @Proclamation of ,artial 0aw%# Philippine Sunda" *+press 3363!B+#." cited in 2homas Mc4enna"
supra&# at 3+<.
9+:
Puoted in @Implementation of the 2ripoli *greement@ jointly published by the 1epartment of Foreign *ffairs and the
Ministry of Muslim *ffairs" Manila" 8ovember ,>" 35.6" p. ?<" cited in *braham Iribani" /ive Peace a %hance" 2he
Story of the /0P#M8LF peace 2al&s" p. 3+ ,--<!# at p. ?<.
9<:
From M8LF files" 8ur Misuari" %hairperson of the M8LF" *ddress delivered before the Plenary Session of the 35
th

I%FM" held in %airo" (gypt" =uly ?3 to *ugust +" 355-" @2he 2ragedy of the Peace Process and What the 35
th
I%FM
%an 1o to 7elp"@ cited in *braham Iribani" Supra&# note +at p. ?5.
9>:
*braham Iribani" supra note +# at p. 6?.
9.:
Marites 1anguilan Eitug and /lenda M. /loria" 3nder the 5rescent ,oonE Rebellion in ,indanao# p. 363,---!.
95:
Id.at 36<.
93-:
Id.at 3<3.
933:
Memorandum of the 0espondent /overnment of the 0epublic of the Philippines Peace Panel on the *ncestral
1omain" September ,<" ,--." p. 3-.
93,:
0epublic *ct 8o. 5-+6" *n *ct to Strengthen and ('pand the )rganic *ct for the *utonomous 0egion in Muslim
Mindanao" amending for the purpose 0epublic *ct 8o. <>?6" entitled Can act providing for the autonomous region in
Muslim MindanaoC" as amended ,--3!.
93?:
/0P#MILF =oint Statement on the Memorandum of *greement on *ncestral 1omain" =uly ,>" ,--..
57
936:
Memorandum of the Solicitor /eneral for the 0espondents" September ,<" ,--." p. >.
93+:
February ,." ,--3.
93<:
('ecutive )rder 8o. ?" ,--3!" Sec. 6a!.
93>:
*mending Sections +c! and 33 of ('ecutive )rder 8o. ?" s#,--3" 1efining the Policy and *dministrative Structure
for /overnmentCs %omprehensive Peace (fforts" *ugust ?" ,--<.
93.:
Individually" these documents have been identified as terms of referents for the M)*.
935:
Schwart;" Aernard. 5onstitutional 0aw at p. ,+ 35>,!.
9,-:
(owen $& Ro"" 6>< K.S. <5?" >,, 35><!.
9,3:
+,? K.S. >,< 355.!.
9,,:
Supra" note 3. at ,+.
9,?:
Id. at >..
9,6:
Memorandum for the 0espondents /overnment of the 0epublic of the Philippines Peace Panel on the *ncestral
1omain" ,< September ,--." p. 3<.
9,+:
Id&# 0esources" 8o. 6b!" p. ..
9,<:
Memorandum of *greement on *ncestral 1omain *spect of the /0P#MILF 2ripoli *greement of Peace of ,--3#
2erritory" 8o. ,f!" p. 6.
9,>:
2he *greement for /eneral %essation of 7ostilities dated =uly 3." 355> Aetween the /0P and the MILF" and its
Implementing *dministrative and )perational /uidelinesJ 2he /eneral Framewor& of *greement of Intent Aetween the
/0P and the MILF dated *ugust ,>" 355.J 2he *greement on the /eneral Framewor& for the 0esumption of Peace
2al&s Aetween the /0P and the MILF dated March ,6" ,--3J 2he 2ripoli *greement on Peace Aetween the /0P and
the MILF dated =une ,," ,--3J 2he 2ripoli *greement Aetween the /0P and the Moro 8ational Liberation Front
M8LF! dated 1ecember ,?" 35>< and the Final *greement on the Implementation of the 35>< 2ripoli *greement
Aetween the /0P and the M8LF dated September ," 355<J 0epublic *ct 8o. <>?6" as amended by 0.*. 5-+6"
otherwise &nown as @*n *ct to Strengthen and ('pand the *utonomous 0egion in Muslim Mindanao *0MM!@J IL)
%onvention 8o. 3<5" in correlation to the K8 1eclaration on the 0ights of the Indigenous Peoples" and 0epublic *ct
8o. .?>3 otherwise &nown as the Indigenous Peoples 0ights *ct of 355>" the K8 %harterJ the K8 Kniversal
1eclaration on 7uman 0ights" International 7umanitarian Law I7L!" and internationally recogni;ed human rights
instruments.
9,.:
Memorandum of *greement on *ncestral 1omain" 2erritory" ,d!" p. ?.
9,5:
3nited States parole 5ommission $& /eraght"" 66+ K.S. ?.." ?5> 35.-! Duoting 7enry Monaghan" @%onstitutional
*djudicationB 2he Who and When"@ ., $ale L.=. 3?<?" 3?.6 35>?!.
9?-:
Preiser $& !ewkirk" 6,, K.S. ?5+" 6-3#-, 35>+!.
9?3:
Memorandum of Petitioners#Intervenors Fran&lin 1rilon and *del 2amano" September 3." ,--." p. ,.
9?,:
Id. at 3?.
58
9??:
Da$id $& ,acapagal-.rro"o" /.0. 8o. 3>3?5<" 6.5 S%0* 3<-" May ?" ,--<.
9?6:
,35 K.S. 65. 3533!.
9?+:
'anada $& .ngara" ??. Phil. +6<" +>6 355>!.
9?<:
5ha$ez $& Public *states .uthorit"" 6?? Phil. +,, ,--,!.
9?>:
*n *ct Providing for an )rganic *ct for the *utonomous 0egion in Muslim Mindanao" *ugust 3" 35.5.
9?.:
III %)8S2I2K2I)8*L 0(%)01 65+#65<.
9?5:
0epublic *ct <>?6 was later amended by 0epublic *ct 5+-6. 2he latter law too& into account the terms of the 2ripoli
*greement.
96-:
33
th
Whereas %lause.
963:
*rticle 3?6" 0evised Penal %ode.
96,:
Sec. 6c! provides for a @peaceful negotiated settlement@ with the different rebeD groups.
96?:
%reating a government peace panel to deal with the MILF.
966:
/.0. 8o. 6+-.3. =uly 3+" 35?<.
96+:
*+ Parte Milligan >3 K.S. , 3.<<!.
96<:
%urtis" Michael M. 'he /reat Political 'heories at p. ?<-& 2his is with reference in particular to =ohn Loc&e.
96>:
Loc&e" =ohn. Second 2reatise on %ivil /overnment. %hapter EII" Sec. 5<. *ccessible at
httpBIIwww.constitution.orgIjlI,ndtr-..t't. Last accessed )ctober ." ,--..
96.:
0osseau" =ean =acDues." 2he Social %ontract 7enry =. 2o;er 2ranslation" %h. EI at pp. ,-#,3.
965:
Sinco" Eicente /. Philippine Political 0aw" at p. << 3-
th
ed. 35+6!.
9+-:
Id. at <<#<>.
&EPARATE CONC#RRNG OPNON
%NARE&)&ANTAGO, $.%
I join the majority opinion and concur in the views e'pressed in the ponencia. More particularly" I register my
agreement in prohibiting respondents and their agents from signing and e'ecuting the Memorandum of *greement on
*ncestral 1omain M)*#*1!" or any similar instruments. 2he said M)*#*1 contains provisions which are repugnant
to the %onstitution and which will result in the virtual surrender of part of the PhilippinesUVW territorial sovereignty"
which our people has spent decades fighting for and which scores of men in uniform have valiantly defended.
59
While the ponencia e'haustively discusses the grounds upon which the %ourt must invalidate and stri&e down the
many Duestionable provisions of the M)*#*1" I wish to add some important points which" I hope" will serve to further
highlight and underscore the serious constitutional flaws in the M)*#*1.
)nly after certain Duarters too& notice and raised a clamor" and only after this %ourt has issued a temporary restraining
order enjoining the signing of the M)*#*1" did respondents" through the )ffice of the Solicitor /eneral and the
('ecutive Secretary" openly declare that the M)*#*1 or any similar instrument will not be signed by the /0P. )n this
basis" respondents assert that the petitions have become moot and academic. 2his" to my mind" was a mere
afterthought. For were it not for the timely e'posure of the M)*#*1 in the public light" the signing thereof would have
gone ahead as planned.
Furthermore" respondentsUVW protestations that the petitions have become moot and academic in view of the
disclosure and non#signing of the M)*#*1 is unavailing" as it is well#recogni;ed that mootness" as a ground for
dismissal of a case" is subject to certain e'ceptions. In Da$id $& Pres& .rro"o"
93:
we held that the %ourt will decide
cases" otherwise moot and academic" ifB 3! there is a grave violation of the %onstitutionJ ,! the situation is e'ceptional
in character and paramount public interest is involvedJ ?! the constitutional issues raised reDuires formulation of
controlling principles to guide the bench" the bar and the publicJ and 6! the case is capable of repetition yet evading
review. 2o my mind" all of these circumstances are present in the cases at bar.
It is beyond cavil that these petitions involve matters that are of paramount public interest and concern. *s shown by
recent events" the M)*#*1 has spawned violent conflicts in Mindanao and has polari;ed our nation over its real
import and effects. 2he controversy over the agreement has resulted in unnecessary loss of lives" destruction of
property and general discord in that part of our country. Strong reasons of public policy and the importance of these
cases to the public demands that we settle the issues promptly and definitely" brushing aside" if we must" technicalities
of procedure.
2he petitions also allege that the /0P panel committed grave violations of the %onstitution when it negotiated and
agreed to terms that directly contravene the fundamental law. 2he basic issue which emerged from all the assertions
of the parties is not only whether the M)*#*1 should be disclosed or signed at all but" more significantly" whether the
/0P panel e'ceeded its powers in negotiating an agreement that contains unconstitutional stipulations. %onsidering
that it has been widely announced that the peace process will continue" and that a new panel may be constituted to
enter into similar negotiations with the MILF" it is necessary to resolve the issue on the /0P panelUVWs authority in
order to establish guiding and controlling principles on its e'tent and limits. Ay doing so" a repetition of the unfortunate
events which transpired in the wa&e of the M)*#*1 can hopefully be avoided.
2here is also the possibility that an agreement with terms similar to the M)*#*1 may again be drafted in the future.
Indeed" respondents cannot prevent this %ourt from determining the e'tent of the /0P panelUVWs authority by the
simple e'pedient of claiming that such an agreement will not be signed or that the peace panel will be dissolved. 2here
will be no opportunity to finally the settle the Duestion of whether a negotiating panel can freely stipulate on terms that
transgress our laws and our %onstitution. It can thus be said that respondentsUVW act of negotiating a peace
agreement similar to the M)*#*1 is capable of repetition yet evading review.
9,:
2he ultimate issue in these cases is whether the /0P panel went beyond its powers when it negotiated terms that
contravene the %onstitution. It is claimed that the panel stipulated on matters that were outside of its authority and
under the e'clusive prerogative of %ongress. In other words" the constitutional as well as legal limits of e'ecutive
authority in the drafting of a peace agreement have been sDuarely put in issue. 2his involves a genuine constitutional
Duestion that the %ourt has the right and duty to resolve.
0espondents insist that it is not necessary to discuss the constitutionality of each provision of the M)*#*1" because
the latter is but a codification of consensus points which creates no rights and obligations between the parties. 2he
M)*#*1 allegedly has no legal effects" even if it is signed" because it is merely a preliminary agreement whose
effectivity depends on subseDuent legal processes such as the formulation of a %omprehensive %ompact" the holding
of a plebiscite" the amendment of laws by %ongress as well as constitutional amendments. %onseDuently" it would be
60
premature for the %ourt to pass upon the constitutional validity of the M)*#*1 since it is neither self#e'ecutory nor is it
the final peace agreement between the /0P and MILF.
* reading of the M)*#*1 shows that its pertinent provisions on the basic concepts" territory" resources and
governance of the Aangsamoro =uridical (ntity A=(! have been made to depend for its effectivity on UVXchanges to
the legal framewor&.UV Paragraph > on the provisions on /overnance statesB
>. 2he parties agree that the mechanisms and modalities for the actual implementation of this M)*#*1 shall be spelt
out in the %omprehensive %ompact to mutually ta&e such steps to enable it to occur effectively.
*ny provisions of the M)*#*1 reDuiring amendments to the e'isting legal framewor& shall come into force upon
signing of a %omprehensive %ompact and upon effecting the necessary changes to the legal framewor& with due
regard to non#derogation of prior agreements and within the stipulated timeframe to be contained in the
%omprehensive %ompact.
2he provisions of the M)*#*1 which reDuire UVXamendments to the e'isting legal framewor&UV include practically
all the substantive terms of the document. It is not difficult to foresee that the material provisions of the M)*#*1 will
reDuire either an amendment to the %onstitution or to e'isting laws to become legally effective. Some of the reDuired
constitutional or statutory amendments are the followingB
a! *rticle I" Section 3
9?:
of the %onstitution has to be amended to segregate the A=( territory from the rest of the
0epublic of the Philippines" as the M)*#*1 delineates the Aangsamoro homeland under its paragraph 3
96:
on
2erritoryJ
b! Section 3" *rticle O
9+:
of the %onstitution will have to include the A=( as among the five &inds of political
subdivisions recogni;ed under the fundamental law. 2he provision of an *utonomous 0egion for Muslim Mindanao
*0MM! will also have to be removed as the same is incorporated in the A=( per paragraph ,.c
9<:
of the M)*#*1
provisions on 2erritoryJ
c! 2he provision in Section 3+" *rticle O
9>:
of the %onstitution which declares the creation of the *0MM UVXwithin the
framewor& of this %onstitution and the national sovereignty as well as territorial integrity of the 0epublic of the
PhilippinesUV must also be changed since there is no provision in the M)*#*1 that subjects the A=( to the
authority" territory and sovereignty of the 0epublic of the PhilippinesJ
d! Section 3<" *rticle O
9.:
of the %onstitution which gives the President power to supervise autonomous regions will
have to be amended since the M)*#*1 does not provide for such supervision over the A=(J
e! Section 3." *rticle O
95:
of the %onstitution which reDuires personal" family and property laws of autonomous regions
to comply with the %onstitution and laws will have to be changed as the M)*#*1 grants the A=( the power to ma&e its
own lawsJ
f! *n overhaul of the various constitutional provisions relating to the ('ecutive" =udicial and Legislative 1epartments as
well as the independent constitutional commissions must be underta&en to accommodate paragraph .
93-:
of the M)*#
*1 provision on /overnance which grants the A=( the power to create its own civil institutionsJ
g! Section ?" *rticle II of the %onstitution which declares the *rmed Forces of the Philippines as protector of the people
and the State will have to be changed because the M)*#*1 provides that the A=( shall have its own internal security
force
933:
and the *FP will only defend the Aangsamoro homeland against e'ternal aggressionJ
93,:
h! Section ," *rticle OII
93?:
of the %onstitution must be changed to allow the A=( to manage" e'plore" develop" and
utili;e the natural resources within the Aangsamoro territory" pursuant to paragraphs ,.f
936:
" g 3!
93+:
and h
93<:
on
2erritory and paragraphs 3
93>:
and ,
93.:
on 0esources of the M)*#*1J
i! Section ,3" *rticle EII
935:
of the %onstitution has to be amended to e'empt the A=( from the ratification reDuirements
of treaties and international agreements since it is given the power to enter into its own economic and trade
agreements with other countriesJ
61
j! 2he Aangsamoro homeland will have to be e'empted from the power of the President to e'ercise general
supervision of all local governments under Section 6" *rticle O
9,-:
of the %onstitution because the M)*#*1 does not
provide for any such stipulationJ
&! Since the A=( will have its own laws" it is not subject to limitations imposed by %ongress on its ta'ing powers under
Section +" *rticle O
9,3:
of the %onstitutionJ
l! 0.*. 8o. <>?6 and 0.*. 8o. 5-+6" or the *0MM )rganic *cts" have to be amended to allow for the e'isting *0MM
to be included within the Aangsamoro homeland to be governed by the A=(J
m! 2he Aangsamoro people will have to be e'empted from the application of 0.*. 8o. .?>3 or the Indigenous Peoples
0ights *ct IP0*! insofar as the M)*#*1 declares the Aangsamoro territory as ancestral domain and recogni;es in
the Aangsamoro people rights pertaining to indigenous peoples under the IP0*J
n! ('isting laws which regulate mining rights and the e'ploitation of natural resources will also have to e'empt the A=(
from its coverage" as the M)*#*1 grants the A=( the power to utili;e" develop and e'ploit natural resources within its
territory as well as the authority to revo&e or grant forest concessions" timber licenses and mining agreementsJ and
o! 2he A=( will also have to be e'empted from e'isting agrarian statutes as the A=( is empowered to enact its own
agrarian laws and program under paragraph ,.e
9,,:
on 0esources.
From the foregoing" it is clear that the substantive provisions of the M)*#*1 directly contravene the fundamental law
and e'isting statutes. )therwise" it would not be necessary to effect either statutory or constitutional amendments to
ma&e it effective. Moreover" as correctly pointed out by petitioners" the /0P panel e'ceeded its authority when it
categorically undertoo& to ma&e these statutory and constitutional changes in order to fully implement the M)*#*1.
Paragraph > of the M)*#*1 on /overnance states that provisions therein which reDuire amendments to the e'isting
legal framewor& shall come into force upon signing of the %omprehensive %ompact and upon effecting the necessary
changes to the legal framewor&. 2hese UVXnecessary changesUV shall be underta&en UVXwith due regard to :o:)
FeroGCtAo: o; =rAor CGreeEe:t? and within the ?tA=@DCteF tAEe;rCEe to be co:tCA:eF A: t<e CoE=re<e:?AHe
CoE=Cct.UV
2he language of the aforesaid paragraph > on /overnance" in relation to paragraph , d! on 2erritory" indicates that
the /0P panel committed itself to cause the necessary changes to the legal framewor& within a stipulated timeframe
for the M)*#*1 to become effective. Paragraph ,d! on 2erritory readsB
,. 2oward this end" the Parties enter into the following stipulationsB
' ' ' '
d. Without derogating from the reDuirements of prior agreements" the /overnment stipulates to conduct and deliver"
using all possible legal measures" within twelve 3,! months following the signing of the M)*#*1" a plebiscite covering
the areas as enumerated in the list and depicted in the map as %ategory * attached herein the *nne'!. 2he *nne'
constitutes an integral part of this framewor& agreement. 2oward this end" the Parties shall endeavor to complete the
negotiations and resolve all outstanding issues on the %omprehensive %ompact within fifteen 3+! months from the
signing of the M)*#*1.
Pursuant to the above" the /0P panel bound itself to UVXcomplete the negotiations and resolve all outstanding issues
on the %omprehensive %ompact within fifteen 3+! months from the signing of the M)*#*1.UV )n the other hand" it
is e'plicitly provided in paragraph > on /overnance that the %omprehensive %ompact shall contain a stipulated
timeframe within which to effect the necessary changes to the legal framewor&. In other words" the /0P panel
undertoo& to change the legal framewor& within a contemplated period to be agreed upon within fifteen 3+! months
from the signing of the M)*#*1.
It should also be noted that" in accordance with paragraph , a!
9,?:
on 2erritory" the /0P panel committed itself UVXto
62
the ;@DD C:F E@t@CD AE=DeEe:tCtAo: of this framewor& agreement on territory.UV 2o fully reali;e the M)*#*1
stipulations on territory" it would be necessary to effect both statutory and constitutional amendments as well as
complete negotiations on the %omprehensive %ompact. 2he plebiscite envisioned under paragraph , c! on 2erritory"
for instance" would reDuire not only an amendment of the *0MM )rganic *cts" but also a constitutional amendment
that would allow for the very creation of the A=(. 2hus" the full implementation of the territory provisions of the M)*#
*1 presupposes changes in the legal framewor&" which the /0P panel guaranteed under paragraph > on
/overnance.
*dditionally" paragraph > on /overnance provides that necessary changes to the legal framewor& shall li&ewise be
effected UVXwith due regard to non#derogation of prior agreements.UV 2his can only mean that any change to the
legal framewor& should not diminish or detract from agreements previously entered into by the parties. It also implies
that provisions of prior agreements are already final and binding" as these serve as ta&e#off points for the necessary
changes that will be effected to fully implement the M)*#*1.
In my opinion" the M)*#*1 is intended to be included among the prior agreements whose terms cannot be decreased
by any of the changes that are necessary for it to come into force. More specifically" by the time the %omprehensive
%ompact shall have prescribed the timeframe for effecting these changes" the M)*#*1 shall have become a prior
agreement that is subject to the non#derogation clause found in paragraph > on /overnance. 2his signifies that any
change in the legal framewor& should adapt to the terms of the M)*#*1. 2he latter becomes the parameter of any
statutory or constitutional amendments which are necessary to ma&e the M)*#*1 effective.
*s such" it cannot be denied that the /0P panel committed itself to the full implementation of the M)*#*1 by effecting
changes to the legal framewor&. 0espondents cannot deny this by saying that the parties further undertoo& to
negotiate a %omprehensive %ompact or a final peace agreement. *lthough it may be conceded that the parties have
yet to enter into a %omprehensive %ompact subseDuent to the signing of the M)*#*1" the nature of this compact
shows that the M)*#*1 was intended as the controlling document for the essential terms of the %omprehensive
%ompact. Paragraphs ? and > of the M)*#*1 provisions on /overnance invariably describe the %omprehensive
%ompact as merely embodying FetCAD? for the e;;ectAHe e:;orceEe:t and Cct@CD AE=DeEe:tCtAo: of the M)*#*1.
2hus" the %omprehensive %ompact will simply lay down the particulars of the partiesUVW final commitments" as
e'pressed in the assailed agreement.
%onseDuently" paragraph > on /overnance in relation to paragraph , a! on 2erritory contradict respondentsUVW
assertion that the M)*#*1 is merely a preparatory agreement devoid of any real effects. 2he language employed in
these provisions do not support respondentsUVW contention that the M)*#*1 is just a reference for future
negotiations or consists of mere proposals that are subject to renegotiation. 2he words used in these provisions are
categorical in stating that the /0P panel committed itself to the full implementation of the M)*#*1 by effecting
changes to the legal framewor& within a stipulated timeframe. In other words" these are definite propositions that would
have to be underta&en under the agreement of the parties.
2he foregoing discussion demonstrates that the M)*#*1 is not merely a draft of consensus points that is subject to
further negotiations between the /0P panel and the MILF. 2he language of the M)*#*1 shows that the /0P panel
made a real and actual commitment to fully implement the M)*#*1 by effecting the necessary amendments to
e'isting laws and the %onstitution. 2he /0P panelUVWs obligation to fully implement the provisions on 2erritory and to
effect these UVXnecessary changesUV is in itself not dependent on any statutory or constitutional amendment. It is
only subject to a timeframe that will be specified in the %omprehensive %ompact" per stipulation of the parties.
*t this point" it is worth noting that the M)*#*1 cannot even be subjected to subseDuent legal processes" such as a
plebiscite or statutory and constitutional amendments. 2he M)*#*1 cannot be validated by any of these means
considering that the /0P panel does not even have the power to ma&e these legal processes occur. 2his is because
the panel is not authori;ed to commit to statutory and constitutional changes to fully implement the M)*#*1. 2hus" it is
not legally possible to underta&e these legal processes under the circumstances provided in the agreement.
2o emphasi;e" the /0P panel had neither power nor authority to commit the government to statutory and
63
constitutional changes. 2he power to amend laws and to cause amendments or revisions to the %onstitution belongs
to %ongress and" to a certain e'tent" the people under a system of initiative and referendum. )nly %ongress and the
people have the competence to effect statutory and constitutional changes in the appropriate manner provided by law.
2he /0P panel" as a mere organ of the ('ecutive branch" does not possess any such prerogative.
In the matter of legislation" it is settled that the power of %ongress under *rticle EI" Section 3
9,6:
of the %onstitution is
plenary and all#encompassing. 2he legislature alone determines when to propose or amend laws" what laws to
propose or amend" and the proper circumstances under which laws are proposed or amended. *s held in -ple $&
'orresB
9,+:
... $eGA?DCtAHe =o>er is UVXthe authority" under the %onstitution" to ma&e laws" and to alter and repeal them.UV 2he
%onstitution" as the will of the people in their original" sovereign and unlimited capacity" has vested this power in the
%ongress of the Philippines. 2he grant of legislative power to %ongress is broad" general and comprehensive. 2he
legislative body possesses plenary power for all purposes of civil government.
Similarly" the power to amend or revise the %onstitution also pertains to %ongress in the e'ercise of its constituent
functions. 2he same power is also reserved to the people under a system of initiative" pursuant to *rticle OEII
9,<:
of the
%onstitution. In 0ambino $& 5-,*0*5"
9,>:
the %ourt stated that there are three modes of amending the %onstitution
under *rticle OEII. 2he first mode is through %ongress" acting as a constituent assembly" upon three#fourthUVWs vote
of all its MembersJ the second mode is through a constitutional convention created under a law passed by %ongressJ
and the third mode is through a peopleUVWs initiative. 8owhere in the %onstitution does it state that the ('ecutive or
any of its organs can effect constitutional changes" as assumed by the /0P panel under the M)*#*1.
8otwithstanding the apparent lac& of power or authority" the /0P panel undertoo& to effect changes to the %onstitution
and to statutes in order to fully implement the M)*#*1. In doing so" the /0P panel pre#empted %ongress by
determining" firsthand" the wisdom of effecting these changes as well as the nature of the reDuired amendments to
laws and the %onstitution. It encroached upon the e'clusive prerogative of %ongress by assuming to e'ercise a
discretion that it did not possess. It thus e'ceeded its authority and acted without jurisdiction.
It should have been evident to the /0P panel that it could not bargain away laws enacted by %ongress or the
peopleUVWs sovereign will as e'pressed in the %onstitution. *part from the fact that it had no power to do so" its acts
were in clear disregard of the instructions of the President as stated in the ,emorandum of Instructions 1rom the
President dated ,arch D# FGGD. 2he President clearly directed therein that UVXt!he negotiations shall be conducted in
accordance with the mandates of the Philippine %onstitution" the 0ule of Law" and the principles of sovereignty and
territorial integrity of the 0epublic of the Philippines.UV 2he /0P panel did otherwise and failed to act in accordance
with this directive.
2he /0P panel derives its authority from the %hief ('ecutive" whose sworn duty is to faithfully e'ecute the laws and
uphold the %onstitution. In negotiating the terms of the M)*#*1" however" the /0P panel violated our %onstitution
and our laws by subscribing to stipulations that could very well lead to their emasculation. 2he /0P panel agreed to
illegal and unconstitutional concessions and guaranteed the performance of a prestation that it could not deliver. 2his
constitutes manifest grave abuse of discretion amounting to lac& or e'cess of jurisdiction.
It is beyond Duestion that the M)*#*1 is patently unconstitutional. 7ad it been signed by the parties" it would have
bound the government to the creation of a separate Aangsamoro state having its own territory" government" civil
institutions and armed forces. 2he concessions that respondents made to the MILF would have given the latter
leverage to demand that the Aangsamoro homeland be recogni;ed as a state before international bodies. It could
insist that the M)*#*1 is in fact a treaty and justify compliance with its provisions" under the international law principle
of pacta sunt ser$anda. 2he sovereignty and territorial integrity of the Philippines would have been compromised.
For these reasons" I vote to grant the petitions. 0espondents must be prohibited and permanently enjoined from
negotiating" e'ecuting and entering into a peace agreement with terms similar to the M)*#*1. *lthough respondents
have manifested that the M)*#*1 will not be signed UVXin its present form or in any other form"UV the agreement
must nonetheless be declared unconstitutional and" therefore" void ab initio" to remove any doubts regarding its
binding effect on the 0epublic. Knder no circumstance could the M)*#*1 acDuire legitimacy and force against the
64
entire nation" and no less than a categorical declaration to this effect should put the issue to rest.
I so vote.
93:
/.0. 8o. 3>3?5<" May ?" ,--<" 6.5 S%0* 3<-" ,36#,3+.
9,:
.lunan $& ,irasol" ?6, Phil. 6<>" 6><#6>> 355>!.
9?:
*rticle I" Section 3. 2he national territory comprises the Philippine *rchipelago" with all the islands and waters
embraced therein" and all other territories over which the Philippines has sovereignty or jurisdiction" consisting of its
terrestrial" fluvial and aerial domains" including its territorial sea" the seabed" the subsoil" the insular shelves" and other
submarine areas" the waters around" between" and connecting the islands of the archipelago" regardless of their
breadth and dimensions" form part of the internal waters of the Philippines.
96:
3. 2he Aangsamoro homeland and historic territory refer to the land mass as well as the maritime" terrestrial" fluvial
and alluvial domains" and the aerial domain" the atmospheric space above it" embracing the Mindanao#Sulu#Palawan
geographic region. 7owever" delimitations are contained in the agreed Schedules %ategories!.
9+:
*rticle O" Section 3. 2he territorial and political subdivisions of the 0epublic of the Philippines are the provinces"
cities" municipalities and barangays. 2here shall be autonomous regions in Muslim Mindanao and the %ordillera as
hereinafter provided.
9<:
2he provision statesB
c. 2he parties affirm that the core of the A=( shall constitute the present geographic area of the *0MM" including the
municipalities of Aaloi" Munai" 8unungan" Pantar" 2agoloan and 2ang&al in the province of Lanao 1el 8orte that voted
for inclusion in the *0MM during the ,--3 plebiscite.
9>:
Section 3+. 2here shall be created *utonomous 0egions in Muslim Mindanao and in the %ordilleras consisting of
provinces" cities" municipalities and geographic areas sharing common and distinctive historical and cultural heritage"
economic and social structures" and other relevant characteristics within the framewor& of this %onstitution and the
national sovereignty as well as territorial integrity of the 0epublic of the Philippines.
9.:
*rticle O" Section 3<. 2he President shall e'ercise general supervision over autonomous regions to ensure that the
laws are faithfully e'ecuted.
95:
*rticle O" Section 3.. 2he %ongress shall enact an organic act for each autonomous region with the assistance and
participation of the regional consultative commission composed of representatives appointed by the President from a
list of nominees from multisectoral bodies. 2he organic act shall define the basic structure of government for the region
consisting of e'ecutive department and legislative assembly. Aoth of which shall be elective and representative of the
constituent political units. 2he organic acts shall li&ewise provide for special courts with personal" family" and property
law jurisdiction consistent with the %onstitution and national laws. ' ' '
93-:
Paragraph ." /overnance. 2he parties agree that the A=( shall be empowered to build" develop and maintain its
own institutions" inclusive of civil service" electoral" financial and ban&ing" education" legislation" legal" economic" and
police and internal security force" judicial system and correctional institutions" necessary for developing a progressive
Aangsamoro society" the details of which shall be discussed in the negotiation of the %omprehensive %ompact.
933:
Id.
93,:
Paragraph 6" 0esources. 2he A=( is free to enter into any economic cooperation and trade relations with foreign
countriesB provided" however" that such relationships and understandings do not include aggression against the
65
/overnment of the 0epublic of the PhilippinesJ provided" further that it shall remain the duty and obligation of the
%entral /overnment to ta&e charge of e'ternal defense. Without prejudice to the right of the Aangsamoro juridical
entity to enter into agreement and environmental cooperation with any friendly country affecting its jurisdiction.
93?:
*rticle OII" Section ,. *ll lands of the public domain" waters" minerals" coal" petroleum and other mineral oils" all
forces of potential energy" fisheries" forests or timber" wildlife" flora and fauna and other natural resources are owned
by the State. With the e'ception of agricultural lands" all other natural resources shall not be alienated. 2he
e'ploration" development" and utili;ation of natural resources shall be under the full control and supervision of the
State. ' ' '
936:
Paragraph ,.f." 2erritory. Internal WatersB
2he A=( shall have jurisdiction over the management" conservation" development" protection" utili;ation and
disposition of all natural resources" living and non#living" within its internal waters e'tending fifteen 3+! &ilometers from
the coastline of the A=( area.
93+:
Paragraph ,.g3!" 2erritory. 2erritorial WatersB 3! 2he territorial waters of the A=( shall stretch beyond the A=(
internal waters up to the 0epublic of the Philippines 0P! baselines southeast and southwest of Mainland Mindanao.
Aeyond the fifteen 3+! &ilometers internal waters" the %entral /overnment and the A=( shall e'ercise joint jurisdiction"
authority and management over areas and all natural resources ' ' '.
93<:
Paragraph ,.h." 2erritory. Sharing of Minerals on 2erritorial WatersB %onsistent with paragraphs + and < of the
provisions on 0esources" all potential sources of energy" petroleum in situ" hydrocarbon" natural gas and other
minerals" including deposits or fields found within territorial waters" shall be shared between the %entral /overnment
and the A=( in favor of the latter through production sharing agreement or economic cooperation agreement.
93>:
Paragraph 3" 0esources. 2he A=( is empowered with authority and responsibility for the land use" development"
conservation and disposition of the natural resources within the homeland. Kpon entrenchment of the A=(" the land
tenure and use of such resources and wealth must reinforce their economic self#sufficiency. ' ' '
93.:
Paragraph ," 0esources. 2he Aangsamoro People through their appropriate juridical entity shall" among others"
e'ercise power or authority over the natural resources within its territorial jurisdictionB
3. 2o e'plore" e'ploit" use or utili;e and develop their ancestral domain and ancestral lands within their territorial
jurisdiction" inclusive of their right of occupation" possession" conservation" and e'ploitation of all natural
resources found thereinJ
,. ' ' '
?. 2o utili;e" develop" and e'ploit its natural resources found in their ancestral domain or enter into joint
development" utili;ation" and e'ploitation of natural resources" specifically on strategic minerals" designed as
commons or shared resources" which is tied up to the final setting of appropriate institutionsJ
2o revo&e of grant forest concessions" timber license" contracts or agreements in the utili;ation and e'ploitation of
natural resources designated as commons or shared resources" mechanisms for economic cooperation with respect to
strategic minerals" falling within the territorial jurisdiction of the A=(J ' ' '
935:
*rticle EII" Section ,3. 8o treaty or international agreement shall be valid and effective unless concurred in by at
least two#thirds of all Members of the Senate.
9,-:
*rticle O" Section 6. 2he President of the Philippines shall e'ercise general supervision over local governments. ' '
'
9,3:
*rticle O" Section +. (ach local government unit shall have the power to create its own sources of revenues and to
levy ta'es" fees" and charges subject to such guidelines and limitations as the %ongress may provide" consistent with
the basic policy of local autonomy. Such ta'es" fees and charges shall accrue e'clusively to the local government.
66
9,,:
Paragraph ,.e" 0esources states that the A=( shall have the powerB e. 2o enact agrarian laws and programs
suitable to the special circumstances of the Aangsamoro people prevailing in their ancestral lands within the
established territorial boundaries of the Aangsamoro homeland and ancestral territory within the competence of the
A=(J ' ' '
9,?:
Paragraph ,.a" 2erritory statesB
a. 2he /0P and MILF as the Parties to this *greement commit themselves to the full and mutual implementation of
this framewor& agreement on territory with the aim of resolving outstanding issues that emanate from the consensus
points on *ncestral 1omain.
9,6:
*rticle EI" Section 3. 2he legislative power shall be vested in the %ongress of the Philippines which shall consist of
a Senate and a 7ouse of 0epresentatives" e'cept to the e'tent reserved to the people by the provision on initiative
and referendum.
9,+:
?+6 Phil. 56." 5<< 355.!.
9,<:
*rticle OEII UVY *mendments or 0evisions
Sec. 3. *ny amendment to" or revision of" this %onstitution may be proposed byB
3! 2he %ongress" upon a vote of three#fourths of all its Members" or
,! * constitutional convention.
Sec. ,. *mendments to this %onstitution may li&ewise be directly proposed by the people through initiative ' ' '.
9,>:
/.0. 8o. 3>63+?" )ctober ,+" ,--<" +-+ S%0* 3<-" ,6>.
&EPARATE CONC#RRNG OPNON
#A!&'(, $.B
If this %ourt did not stop the signing of the Memorandum of *greement on *ncestral 1omain M)*#*1!" this country
would have been dismembered because the ('ecutive branch would have committed to amend the %onstitution to
conform to the M)*#*1. 2he M)*#*1 gives to the Aangsamoro =uridical (ntity A=(! the attributes of a state" with its
own people" territory" government" armed forces" foreign trade missions" and all other institutions of a state"
93:
under the
A=(Cs own basic law or constitution.
9,:
#?@r=CtAo: o; t<e Po>er? o; Co:Gre?? C:F t<e Peo=De
2he initialed M)*#*1 between the /overnment of the 0epublic of the Philippines /0P! and the Moro Islamic
Liberation Front MILF! is =Cte:tDB @:co:?tAt@tAo:CD. 2he ('ecutive branchCs commitment under the M)*#*1 to
amend the %onstitution to conform to the M)*#*1 violates Sections 3 and 6" *rticle OEII of the %onstitution. 2he
('ecutive branch @?@r=? the sole discretionary power of %ongress to propose amendments to the %onstitution as well
as the e'clusive power of the sovereign people to approve or disapprove such proposed amendments. Sections 3 and
6" *rticle OEII of the %onstitution provideB
Section 3. *ny amendment to" or revision of" this %onstitution may be proposed byB
3! 2he %ongress" upon a vote of three#fourths of all its MembersJ or
,! * constitutional convention.
67
Section 6. *ny amendment to" or revision of" this %onstitution under Section 3 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier than si'ty days nor later than ninety days after
the approval of such amendment or revision.
Indisputably" the ('ecutive branch has no power to commit to the MILF that the %onstitution shall be amended to
conform to the M)*#*1. Such commitment is a grave abuse of discretion amounting to lac& or e'cess of jurisdiction.
9?:
2he M)*#*1 states" in paragraph ,a! on 2erritory" that @t<e PCrtAe? to t<A? AGreeEe:t coEEAt t<eE?eDHe? to t<e
;@DD C:F E@t@CD AE=DeEe:tCtAo: o; t<A? ;rCEe>orL CGreeEe:t.@ 2he M)*#*1 further states" in paragraph > on
/overnance" thatB
*ny provisions of the M)* on *ncestral 1omain reDuiring amendments to the e'isting legal framewor& shall come into
force upon signing of a comprehensive compact and upon effecting the necessary changes to the legal framewor& with
F@e reGCrF to :o: FeroGCtAo: o; =rAor CGreeEe:t? and within the stipulated timeframe to be contained in the
%omprehensive %ompact. (mphasis supplied!
2he ('ecutive branch commits to implement fully the M)*#*1 by amending the @e'isting legal framewor&"@ impliedly
referring to the %onstitution. 2he ('ecutive branch further commits that ?@c< co:?tAt@tAo:CD CEe:FEe:t? ?<CDD :ot
FeroGCte ;roE =rAor GRP)*$! CGreeEe:t?. *t the time of the constitutional amendments" the M)*#*1 will be a
prior agreement" along with several other /0P#MILF agreements.
96:
2he phrase @due regard to non#derogation of prior agreements@ means there shall be no deviation from previous /0P#
MILF agreements. 2he word @due@ means a right to something" as in something that is @due@ a person. 2his is the
same usage of the word @due@ in the phrase @due process of law"@ which means oneCs right to legal process. 2he word
@regard@ means attention or observance. @8on#derogation@ means no deviation. 2hus" @due regard to non#derogation of
prior agreements@ simply means observance of what the MILF is entitled under previous /0P#MILF agreements" to
which there shall be no deviation.
2he phrase @due regard@ means mandatory observance and not discretionary observance. When one spea&s of @due
regard for the law"@ one intends mandatory observance of the law. 2he same is true for @due regard to non#derogation
of prior agreements"@ which means mandatory observance of non#derogation of previous agreements. 2he following
pronouncements of the %ourt reveal the mandatory nature of the phrase @due regard@B
2he least this %ourt can do under the circumstances is to ma&e clear to all and sundry" especially to members of police
forces" that the authority conferred on them to maintain peace and order should be e'ercised with F@e reGCrF to the
constitutional rights" most especially so of those who belong to the lower#income groups. If in a case li&e the present"
the full force of the penal statute is not felt by the perpetrator of the misdeed" then the law itself stands condemned.
2his we should not allow to happen.
9+:
(mphasis supplied!
(ntrapment is allowed when it is underta&en with F@e reGCrF to constitutional and legal safeguards. It has repeatedly
been accepted as a valid means of arresting violators of the 1angerous 1rugs Law.
9<:
(mphasis supplied!
2he phrase @due regard@ is commonly found in international treaties and conventions" li&e the 3nited !ations
5on$ention on the 0aw of the Sea K8%L)S! where the phrase appears at least 3< times. 2he phrase @due regard@ as
used in K8%L)S is e'plained as followsB
[T]<e reK@AreEe:t o; JF@e reGCrFJ A? C K@CDA;AcCtAo: o; t<e rAG<t? o; &tCte? in e'ercising the freedoms of the high
seas. T<e ?tC:FCrF o; JF@e reGCrFJ reK@Are? CDD &tCte?" in e'ercising their high seas freedoms" to be aware of and
consider the interests of other States in using the high seas" and to re;rCA: ;roE CctAHAtAe? t<Ct A:ter;ere >At< t<e
e9ercA?e bB ot<er &tCte? o; t<e ;reeFoE o; t<e <AG< ?eC?. *s the IL% 9which prepared drafts of the 35+. L)S
%onventions:" stated in its %ommentary in 35+<" @&tCte? Cre bo@:F to re;rCA: ;roE C:B Cct? t<Ct EAG<t CFHer?eDB
C;;ect t<e @?e o; t<e <AG< ?eC? bB :CtAo:CD? o; ot<er &tCte?.@ 2he construction in paragraph , recogni;es that all
States have the right to e'ercise high seas freedoms" and balances consideration for the rights and interests of all
states in this regard.
9>:
(mphasis supplied!
2he phrase @due regard"@ as used in the 5on$ention on International 5i$il .$iation" is understood as giving rise to @a
F@tB of Mdue regardC upon operators of state aircraft" and thus" upon military aircraft" for the safety of the navigation of
civil aircraft.@
9.:
2hus" @t<e QF@e reGCrFO r@De reECA:? t<e =rA:cA=CD treCtB obDAGCtAo: AE=o?eF @=o: &tCte? for the
regulation of the flight of military aircraft applicable during times of peace and armed conflict.@
95:
68
2he %hairman of the MILF and its highest#ran&ing official" *l 7aj Murad (brahim" candidly admitted that the MILFCs
understanding is that the %onstitution shall be amended to conform to the M)*#*1. In an *AS#%A8 television
interview aired nationwide on ,- *ugust ,--." and widely reported in the newspapers" MILF %hairman Murad statedB
It may be beyond the %onstitution but the %onstitution can be amended and revised to accommodate the agreement.
-<Ct A? AE=ortC:t A? F@rA:G t<e CEe:FEe:t, At >ADD :ot FeroGCte or >Cter Fo>: t<e CGreeEe:t becC@?e >e
<CHe >orLeF t<A? o@t ;or Eore t<C: 10 BeCr? :o>.
93-:
(mphasis supplied!
1uring the oral arguments" *tty. Sedfrey %andelaria" principal counsel to the /0P Panel" when as&ed about this
statement" did not dispute that MILF %hairman Murad made the statement. *tty. %andelaria simply told the %ourt that
MILF %hairman Murad @did not sit in the negotiating table.@
933:
%learly" under the M)*#*1" the ('ecutive branch assumes the EC:FCtorB obDAGCtAo: to amend the %onstitution to
conform to the M)*#*1. 1uring the oral arguments" *tty. Sedfrey %andelaria admitted that the implementation of the
M)*#*1 reDuires @FrC?tAc c<C:Ge?@ to the %onstitution.
93,:
*s directed by =ustice *ntonio 2. %arpio" *tty. %andelaria
undertoo& to submit to the %ourt a listing of all provisions in the %onstitution that needed amendment to conform to the
M)*#*1.
93?:
In their Memorandum dated ,6 September ,--." respondents statedB @In compliance with the said
directive" the constitutional provisions that may be affected" as relayed by *tty. Sedfrey %andelaria" are the following ##
Sections 3" +" 3." ,- and ,3 of *rticle O under Local *utonomy.@
936:
T<A? DA?tA:G A? Gro??DB A:coE=Dete. * more
thorough scrutiny shows that the @drastic changes@ are amendments to the following provisions of the %onstitutionB
3. *rticle 3 on the 8ational 2erritory.
93+:
1uring the oral arguments" *tty. Sedfrey %andelaria stated that this
provision would have to be amended to conform to the M)*#*1.
93<:
,. Section ?" *rticle II on the role of the *rmed Forces of the Philippines as @protector of the people and the
State.@
93>:
Knder the M)*#*1" the *FPCs role is only to defend the A=( against e'ternal aggression.
93.:
?. *rticle III on the Aill of 0ights. 2he M)*#*1 does not state that the Aill of 0ights will apply to the A=(. 2he
M)*#*1 refers only to @internationally recogni;ed human rights instruments@
935:
such as the Knited 8ations
Kniversal 1eclaration on 7uman 0ights" International 7umanitarian Law" and the Knited 8ations 1eclaration
on the 0ights of Indigenous Peoples. 8o reference is made to the Aill of 0ights or even to the %onstitution.
6. Section 3" *rticle EI on the Legislative 1epartment.
9,-:
Legislative power shall no longer be vested solely in the
%ongress of the Philippines. Knder the M)*#*1" the A=( shall @build, develop and maintain its own
institutions@
9,3:
li&e a legislature whose laws are not subordinate to laws passed by %ongress.
9,,:
+. Section 3" *rticle EII on e'ecutive power.
9,?:
('ecutive power shall no longer be vested e'clusively in the
President of the Philippines. 2he A=( shall have its own %hief ('ecutive who will :ot be under the
supervision of the President.
9,6:
<. Section 3<" *rticle EII on the PresidentCs power to appoint certain officials" including military officers from the
ran& of colonel or naval captain" with the consent of the %ommission on *ppointments.
9,+:
*ll public officials in
the A=(" including military officers of any ran& in the A=( internal security force" will be appointed in
accordance with the A=(Cs own basic law or constitution.
>. Section 3>" *rticle EII on the PresidentCs control over all e'ecutive departments.
9,<:
2he President will not
control e'ecutive bureaus or offices in the A=(" li&e foreign trade missions of the A=(.
.. Section 3." *rticle EII on the President as @%ommander#in#%hief of CDD armed forces of the Philippines.@
9,>:

Knder the M)*#*1" the President will not be the %ommander#in#%hief of the A=(Cs internal security force.
2he A=(Cs internal security force will not be part of the *FP chain of command.
5. Section ,3" *rticle EII on the ratification of treaties and international agreements by the Senate.
9,.:
2his will
not apply to the A=( which" under the M)*#*1" has the power to enter into economic and trade treaties with
other countries.
9,5:
3-. Section 3" *rticle EIII on judicial power being vested in o:e Supreme %ourt.
9?-:
Since the A=( will have @At?
o>: ' ' ' I@FAcACD ?B?teE"@
9?3:
the A=( will also have its own Supreme %ourt.
33. Section ," *rticle EIII on the power of %ongress to define and apportion the jurisdiction of lower courts.
9?,:

Knder the M)*#*1" %ongress cannot prescribe the jurisdiction of A=( courts.
3,. Section +,!" *rticle EIII on the power of the Supreme %ourt to review decisions of lower courts and to
promulgate rules of pleadings and practice in all courts.
9??:
Knder the M)*#*1" the A=( will have its own
69
judicial system. 1ecisions of A=( courts are not reviewable by the Supreme %ourt.
3?. Section +<!" *rticle EII on the power of the Supreme %ourt to appoint CDD officials and employees in the
=udiciary.
9?6:
2his power will not apply to courts in the A=(.
36. Section <" *rticle EIII on the Supreme %ourtCs administrative supervision over CDD courts and their personnel.
9?+:
Knder the M)*#*1" the Supreme %ourt will not e'ercise administrative supervision over A=( courts and
their personnel.
3+. Section 5" *rticle EIII on the appointment by the President of CDD judges in the =udiciary from nominees
recommended by the =udicial and Aar %ouncil.
9?<:
2his provision will not apply to courts in the A=(.
3<. Section 33" *rticle EIII on the power of the Supreme %ourt to discipline judges of CDD lower courts.
9?>:
2his
power will not apply to judges in the A=(.
3>. Section 33!" *rticle IO#A on the power of the %ivil Service %ommission to administer the civil service.
9?.:

Knder the M)*#*1" the A=( will have @At? o>: ' ' ' cAHAD ?erHAce@
9?5:
2he %ivil Service %ommission will have
no jurisdiction over the A=(Cs civil service.
3.. Section ,3!" *rticle IO#% on the power of the %ommission on (lections to enforce and administer CDD election
laws.
96-:
Knder the M)*#*1" the A=( will have @At? o>: ' ' ' eDectorCD ?B?teE.@
963:
2he %ommission on
(lections will have no jurisdiction over the A=(Cs electoral system.
35. Section ,3!" *rticle IO#1 on the power of the %ommission on *udit to e'amine and audit CDD subdivisions"
agencies and instrumentalities of the /overnment.
96,:
Knder the M)*#*1" the A=( can @b@ADF, FeHeDo= C:F
ECA:tCA: At? o>: A:?tAt@tAo:?@
96?:
without limit. 2he A=( can create its own audit authority. 2he %ommission
on *udit will have no jurisdiction over the A=( or its subdivisions" agencies or instrumentalities.
,-. Section 3" *rticle O on the political subdivisions of the Philippines.
966:
* new political subdivision for the A=(
will have to be created.
,3. Section 6" *rticle O on the power of the President to e'ercise general supervision over CDD local governments.
96+:
Knder the M)*#*1" this provision will not apply to the A=(.
,,. Section +" *rticle O subjecting the ta'ing power of local governments to limitations prescribed by %ongress.
96<:
Knder the M)*#*1" the A=( shall have @At? o>: ' ' ' DeGA?DCtAo:.@
96>:
2he A=(Cs ta'ing power will not be
subject to limitations imposed by national law.
,?. Section <" *rticle O on the @just share@ of local government units in national ta'es.
96.:
Since the A=( is in reality
independent from the national government" this provision will have to be revised to reflect the independent
status of the A=( and its component cities" municipalities and barangays vis#F #vis other local government
units.
,6. Section 3-" *rticle O on the alteration of boundaries of local government units" which reDuires a plebiscite @in
the political units affected.@
965:
Knder paragraph ,d! on 2erritory of the M)*#*1"
9+-:
the plebiscite is only in the
barangays and municipalities identified as e'pansion areas of the A=(. 2here will be no plebiscite @in the
political units affected"@ which should include all the barangays within a city" and all municipalities within a
province.
,+. Section 3+" *rticle O on the creation of autonomous regions within the framewor& of the %onstitution" national
sovereignty and territorial integrity of the Philippines.
9+3:
2his will have to be revised since under the M)*#*1
the A=( has all the attributes of a state.
,<. Section 3<" *rticle O on the PresidentCs power to e'ercise general supervision over autonomous regions.
9+,:

2his provision will not apply to the A=(" which is totally independent from the PresidentCs supervision.
,>. Section 3>" *rticle O which vests in the 8ational /overnment residual powers" or those powers which are not
granted by the %onstitution or laws to autonomous regions.
9+?:
2his will not apply to the A=(.
,.. Section 3." *rticle O which reDuires that personal" family and property laws of autonomous regions shall be
consistent with the %onstitution and national laws.
9+6:
2his will not apply to the A=( which will have its own
basic law or constitution.
9++:
,5. Section ,-" *rticle O on the legislative powers of autonomous regional assemblies whose laws are subject to
the %onstitution and national laws.
9+<:
2his provision will not apply to the A=(.
?-. Section ,3" *rticle O on the preservation of peace and order within autonomous regions by the local police as
provided in national laws.
9+>:
Knder the M)*#*1" the A=( shall have @At? o>: ' ' ' =oDAce@
9+.:
to preserve
peace and order within the A=(.
?3. Section ," *rticle OII on State ownership of all lands of the public domain and of all natural resources in the
Philippines.
9+5:
Knder paragraph ? on %oncepts and Principles of the M)*#*1"
9<-:
C:ce?trCD FoECA:, ><Ac<
70
co:?A?t? o; C:ce?trCD DC:F? C:F t<e :Ct@rCD re?o@rce? A: ?@c< DC:F?, Foe? :ot ;orE =Crt o; t<e =@bDAc
FoECA:. 2he ancestral domain of the Aangsamoro refers to land they or their ancestors continuously
possessed since time immemorial" e'cluding the period that their possession was disrupted by conDuest" war"
civil disturbance" force majeure" other forms of usurpation or displacement by force" deceit or stealth" or as a
conseDuence of government project" or any voluntary dealings by the government and private parties. Knder
paragraph 3 on %oncepts and Principles of the M)*#*1"
9<3:
the Aangsamoro people are the Moros and all
indigenous peoples of Mindanao" Sulu and Palawan. 2hus" the ancestral domain of the Aangsamoro refers to
the lands that all the peoples in ,indanao# Sulu and Palawan possessed before the arri$al of the Spaniards
in DHFD. : ?<ort, t<e C:ce?trCD FoECA: o; t<e BC:G?CEoro re;er? to t<e e:tAre *A:FC:Co , &@D@ C:F
PCDC>C:. 2his negates the 0egalian doctrine in the 35?+" 35>? and 35.> %onstitutions.
?,. Section 5" *rticle OII on the establishment of an independent economic and planning agency headed by the
President.
9<,:
2his agency is the 8ational (conomic and 1evelopment *uthority. Knder the M)*#*1" the A=(
will have its own economic planning agency.
??. Section ,-" *rticle OII on the establishment of an independent monetary authority" now the (angko Sentral
ng Pilipinas.
9<?:
Knder the M)*#*1" the A=( will have its own financial and ban&ing authority.
9<6:
?6. Section 6" *rticle OEI on the maintenance of @C reG@DCr ;orce necessary for the security of the State.@
9<+:
2his
provision means there shall only be o:e @*rmed Forces of the Philippines@ under the command and control of
the President. 2his provision will not apply to the A=( since under the M)*#*1" the A=( shall have @At? o>:
9 9 9 A:ter:CD ?ec@rAtB ;orce@
9<<:
which will not be under the command and control of the President.
?+. Section +<!" *rticle OEI on the composition of the armed forces" whose officers and men must be recruited
proportionately from all provinces and cities as far as practicable.
9<>:
2his will not apply to the A=(Cs internal
security force whose personnel will come only from A=( areas.
?<. Section <" *rticle OEI on the establishment of one police force which shall be national in scope under the
administration and control of a national police commission.
9<.:
2he A=( will have @At? o>: ' ' ' =oDAce@
9<5:

which is a reGAo:CD =oDAce ;orce not administered or controlled by the 8ational Police %ommission.
T<e E9ec@tAHe brC:c< t<@? G@CrC:tee? to t<e *$! t<Ct t<e Co:?tAt@tAo: ?<CDD be FrC?tAcCDDB oHer<C@DeF to
co:;orE to t<e *OA)A". 2he ('ecutive branch completely disregards that under the %onstitution the sole
discretionary power to propose amendments to the %onstitution lies with %ongress" and the power to approve or
disapprove such proposed amendments belongs e'clusively to the people.
2he claim of respondents that the phrase @prior agreements@ does not refer to the M)*#*1 but to /0P#MILF
agreements prior to the M)*#*1 is immaterial. Whether the prior agreement is the M)*#*1 or any other /0P#MILF
agreement prior to the constitutional amendments" any commitment by the ('ecutive branch to amend the
%onstitution without derogating from such prior /0P#MILF agreement would still be unconstitutional for the same
reason ## usurpation by the ('ecutive branch of the e'clusive discretionary powers of %ongress and the Filipino people
to amend the %onstitution.
VAoDCtAo: o; Co:?tAt@tAo:CD RAG<t? o; $@ECF?
Knder the M)*#*1" the ('ecutive branch also commits to incorporate all the Lumads in Mindanao" who are non#
Muslims" into the Aangsamoro people who are Muslims. 2here are 3. distinct Lumad groups in Mindanao with their
own ancestral domains and their own indigenous customs" traditions and beliefs. 2he Lumads have lived in Mindanao
long before the arrival of Islam and %hristianity. For centuries" the Lumads have resisted Islam" a foreign religion li&e
%hristianity. 2o this day" the Lumads proudly continue to practice their own indigenous customs" traditions and beliefs.
Suddenly" without the &nowledge and consent of the Lumads" the ('ecutive branch has erC?eF t<eAr AFe:tAtB as
separate and distinct indigenous peoples. 2he M)*#*1" in paragraph 3 on %oncepts and Principles" providesB
t A? t<e bArt<rAG<t o; all Moros and CDD :FAGe:o@? =eo=De? o; *A:FC:Co to AFe:tA;B t<eE?eDHe? C:F be Ccce=teF
C? JBC:G?CEoro?@. 2he Aangsamoro people refers to those who are natives or original inhabitants of Mindanao and
its adjacent islands including Palawan and the Sulu archipelago at the time of conDuest or coloni;ation and their
descendants whether mi'ed or of full native blood. Spouses and their descendants are classified as Aangsamoro. 2he
freedom of choice of the indigenous people shall be respected. (mphasis supplied!
71
2he declaration that it is the @bArt<rAG<t o; ' ' ' CDD :FAGe:o@? =eo=De? o; *A:FC:Co to AFe:tA;B t<eE?eDHe? C:F be
Ccce=teF C? QBC:G?CEoro?O@ is cultural genocide. It erases by a mere declaration the identities" culture" customs"
traditions and beliefs of 3. separate and distinct indigenous groups in Mindanao. 2he @freedom of choice@ given to the
Lumads is an empty formality because o;;AcACDDB ;roE bArt< t<eB Cre CDreCFB AFe:tA;AeF C? BC:G?CEoro?. 2he
Lumads may freely practice their indigenous customs" traditions and beliefs" but they are still identified and &nown as
Aangsamoros under the authority of the A=(.
2he M)*#*1 divests the Lumads of their ancestral domains and hands over possession" ownership and jurisdiction of
their ancestral domains to the A=(. In paragraphs ," ? and < on %oncepts and Principles" the M)*#*1 gives
ownership over the AangsamorosC ancestral domain to the Aangsamoro people" defines the ancestral domain of the
Aangsamoros" and vests jurisdiction and authority over such ancestral domain in the A=(" thusB
,. It is essential to lay the foundation of the Aangsamoro homeland in order to address the Aangsamoro peopleCs
humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic
areas being the natural wealth and patrimony represent the social" cultural and political identity and pride of all the
BC:G?CEoro =eo=De. O>:er?<A= o; t<e <oEeDC:F A? He?teF e9cD@?AHeDB A: t<eE by virtue of their prior rights of
occupation that had inhered in them as si;eable bodies of people" delimited by their ancestors since time immemorial"
and being the first politically organi;ed dominant occupants.
?. ' ' ' *ncestral domain and ancestral land refer to those <eDF @:Fer cDCAE o; o>:er?<A=, occ@=AeF or =o??e??eF,
bB t<eE?eDHe? or t<ro@G< t<e C:ce?tor? o; t<e BC:G?CEoro =eo=De" communally or individually ' ' '.
' ' ' '
<. Aoth Parties agree that t<e BC:G?CEoro '@rAFAcCD E:tAtB .B'E/ ?<CDD <CHe t<e C@t<orAtB C:F I@rA?FActAo: oHer
t<e A:ce?trCD "oECA: C:F A:ce?trCD DC:F?, including both alienable and non#alienable lands encompassed within
their homeland and ancestral territory" as well as the delineation of ancestral domainsIlands of the Aangsamoro people
located therein. (mphasis supplied!
*fter defining the Aangsamoro people to include all the Lumads" the M)*#*1 then defines the ancestral domain of the
Aangsamoro people as the ancestral domain of all the Aangsamoros" which now includes the ancestral domains of all
the Lumads. 2he M)*#*1 declares that e'clusive ownership over the Aangsamoro ancestral domain belongs to the
Aangsamoro people. 2he M)*#*1 vests jurisdiction and authority over the AangsamorosC ancestral domain in the
A=(. 2hus" the Lumads lost not only their separate identities but also their ancestral domains to the Aangsamoros and
the A=(.
2he incorporation of the Lumads as Aangsamoros" and the transfer of their ancestral domains to the A=(" without the
LumadsC &nowledge and consent"
9>-:
violate the %onstitutional guarantee that the @State recoG:AMe? C:F =roEote? t<e
rAG<t? o; A:FAGe:o@? c@Dt@rCD coEE@:AtAe? within the framewor& of national unity and development.@
9>3:
2he
incorporation also violates the %onstitutional guarantee that the @State" subject to the provisions of this %onstitution
and national development policies and programs" shall =rotect t<e rAG<t? o; A:FAGe:o@? c@Dt@rCD EA:orAtAe? to t<eAr
C:ce?trCD DC:F? to ensure their economic" social" and cultural well#being.@
9>,:
2hese %onstitutional guarantees" as implemented in the Indigenous PeoplesC 0ights *ct of 355>" grant the Lumads
@the right to participate fully" if they so chose" Ct CDD DeHeD? o; FecA?Ao:)ECLA:G A: ECtter? ><Ac< ECB C;;ect t<eAr
rAG<t?, DAHe? C:F Fe?tA:Ae?.@
9>?:
Since the ('ecutive branch &ept the M)*#*1 confidential until its publication in the
Philippine Dail" Inquirer on 6 *ugust ,--." the day before its scheduled signing in 4uala Lumpur" Malaysia" there
could have been no participation by the 3. Lumad groups of Mindanao in their incorporation into the Aangsamoro.
2his alone shows that the ('ecutive branch did not consult" much less secure the consent" of the Lumads on their
rights" lives and destinies under the M)*#*1. In fact" representatives of the 3. Lumad groups met in %agayan de )ro
%ity and announced on ,> *ugust ,--." through their convenor 2imuay 8anding Mudai" that @>e cC::ot Ccce=t t<Ct
>e Cre =Crt o; t<e BC:G?CEoro.@
9>6:
2he incorporation of the Lumads" and their ancestral domains" into the Aangsamoro violates the %onstitutional and
legislative guarantees recogni;ing and protecting the LumadsC distinct cultural identities as well as their ancestral
72
domains. 2he violation of these guarantees ma&es the M)*#*1 =Cte:tDB @:co:?tAt@tAo:CD.
2he incorporation of the Lumads" and their ancestral domains" into the Aangsamoro without the LumadsC &nowledge
and consent also violates *rticle . of the 3nited !ations Declaration on the Rights of Indigenous Peoples.
9>+:
Section .
of the 1eclaration statesB
*rticle ..
3. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of
their culture.
,. States shall provide effective mechanisms for prevention of" and redress forB
a! A:B CctAo: ><Ac< <C? t<e CAE or e;;ect o; Fe=rAHA:G t<eE o; t<eAr A:teGrAtB C? FA?tA:ct =eo=De?, or o;
t<eAr c@Dt@rCD HCD@e? or et<:Ac AFe:tAtAe?J
b! A:B CctAo: ><Ac< <C? t<e CAE or e;;ect o; FA?=o??e??A:G t<eE o; t<eAr DC:F?, terrAtorAe? or
re?o@rce?J
c! *ny form of forced population transfer which has the aim or effect of violating or undermining any of their
rightsJ
d! *ny form of forced assimilation or integrationJ
e! *ny form of propaganda designed to promote or incite racial or ethnic discrimination directed against
them. (mphasis supplied!
2he provisions of *rticle . were designed to prevent c@Dt@rCD Ge:ocAFe of indigenous peoples. 2his will happen if the
Lumads are identified from birth as Aangsamoros and their ancestral domains are absorbed into the ancestral domain
of the Aangsamoros.
2here is another provision in the M)*#*1 that could prove oppressive to the Lumads" and even invite conflicts with
%hristians. 2he M)*#*1" in paragraph 6 on 2erritory" eE=o>er? t<e B'E to e?tCbDA?< =oDAtAcCD ?@bFAHA?Ao:? >At<A:
t<e BC:G?CEoro C:ce?trCD FoECA:, as followsB
*ll territorial and geographic areas in Mindanao and its adjacent islands including Palawan and the Sulu archipelago
that have been declared recogni;ed" andIor delineated as ancestral domain and ancestral land of the Aangsamoro
people as their geographical areas" inclusive of settlements and reservations" ECB be ;orEeF or co:?tAt@teF A:to
=oDAtAcCD ?@bFAHA?Ao:? o; t<e BC:G?CEoro terrAtorACD I@rA?FActAo:? subject to the principles of eDuality of peoples
and mutual respect and to the protection of civil" political" economic" and cultural rights in their respective jurisdictions.
2hus" the A=( can create political subdivisions ## barangays and municipalities ## within the Aangsamoro ancestral
domain. Knder the M)*#*1" the Aangsamoro ancestral domain includes the ancestral domains of the Lumads. 2he
A=( can create barangays and municipalities in areas that are presently the ancestral domains of the Lumads. T<e
B'E cC: ?tCtAo: At? =oDAce C:F A:ter:CD ?ec@rAtB ;orce A: t<e?e CreC?. *C:B o; t<e?e CreC? )) t<e =re?e:t
C:ce?trCD FoECA:? o; t<e $@ECF? )) Cre DocCteF >At<A: =roHA:ce?, cAtAe? C:F E@:AcA=CDAtAe? ><ere C<rA?tAC:?
Cre t<e ECIorAtB.
2here are obvious possible adverse ramifications of this power of the A=( to create political subdivisions within
provinces" cities and municipalities o@t?AFe o; t<e B'E terrAtorB. 2he creation by the A=( of such political
subdivisions will alter the boundaries of the affected provinces" cities and municipalities" an alteration that" under the
%onstitution" reDuires an act of %ongress and a plebiscite in the affected political units.
9><:
2he ('ecutive branch must
conduct widespread consultations not only with the Lumads" but also with the %hristians who" under the M)*#*1" will
be affected by the creation of such A=( political subdivisions within their provinces" cities and municipalities.
PetAtAo:? Pre?e:t '@?tAcACbDe Co:troHer?B
2he claim of respondents that the M)*#*1" not having been signed but merely initialed" does not give rise to an actual
controversy cogni;able by the %ourt" is gravely erroneous. T<e *OA)A" <C? t>o ;eCt@re?8 .1/ C? C: A:?tr@Ee:t o;
ce??Ao: o; terrAtorB C:F ?oHereAG:tB to C :e> ?tCte, t<e B'E3 C:F .2/ C? C treCtB >At< t<e re?@DtA:G B'E,
GoHer:A:G t<e C??ocACtAHe reDCtAo:?<A= >At< t<e Eot<er ?tCte,
[11]
t<e P<ADA==A:e?, ><o?e o:DB AE=ortC:t roDe A:
73
t<e reDCtAo:?<A= A? Jto tCLe c<CrGe o; e9ter:CD Fe;e:?e.@
9>.:
=ustice Eicente E. Mendo;a" a former member of this
%ourt and a recogni;ed authority on constitutional law" statesB
It is indeed true that the A=( is not fully independent or sovereign and indeed it is dependent on the Philippine
government for its e'ternal defense and only lac&s foreign recognition" at least at the present time. No:et<eDe?? At A? C
?tCte C? t<e P<ADA==A:e? >C? C ?tCte F@rA:G t<e CoEEo:>eCDt< =erAoF, ><Ac< >C? :ot C =Crt o; t<e terrAtorB o;
t<e #:AteF &tCte? CDt<o@G< ?@bIect to At? ?oHereAG:tB. A? C ?tCte, At >C? C ?AG:CtorB to ?eHerCD treCtAe? C:F
A:ter:CtAo:CD CGreeEe:t?, ?@c< C? t<e C<Crter o; t<e #:AteF NCtAo:? o; 'C:@CrB 1, 1942, C:F C =CrtAcA=C:t A:
?eHerCD co:;ere:ce? ?@c< C? t<Ct <eDF A: Bretto: -ooF?, Ne> HCE=?<Are, o: '@DB 1)22, 1944, o: t<e GATT . *s
the K.S. Supreme %ourt noted in 6oo$en ? .llison 5o& $& *$att" the adoption of the 35?+ %onstitution prepared the
way for the complete independence of the Philippines and the government organi;ed under it had been given" in many
aspects" by the Knited States @the status of an independent government which has been reflected in its relation as
such with the outside world.@ Similarly" the Supreme %ourt of the Philippines held in 0aurel $& ,isa that @the
%ommonwealth of the Philippines was a sovereign government although not absolute.@
9>5:
(mphasis supplied!
2hus"o:ce t<e *OA)A" A? ?AG:eF" the MILF" as the ac&nowledged representative of the A=(" can e'ercise the rights
of the A=( as a state.
2he MILF" on behalf of the A=(" can then demand that the Philippines comply" under the principle of pacta sunt
ser$anda# with the e'press terms of the M)*#*1 reDuiring the Philippines to amend its %onstitution to conform to the
M)*#*1. Knder the 35<5 9ienna 5on$ention on the 0aw of 'reaties" the Philippines cannot invo&e its internal law"
including its %onstitution" as justification for non#compliance with the M)*#*1" which operates as a treaty between the
/0P and the A=(.
9.-:
2hus" under international law" the Philippines is obligated to amend its %onstitution to conform to
the M)*#*1" ><et<er Co:Gre?? or t<e !ADA=A:o =eo=De CGree or :ot.
If this %ourt wants to prevent the dismemberment of the Philippines" a dismemberment that violates the %onstitution"
the %ourt should not wait for the /0P Panel to sign the M)*#*1. )nce the M)*#*1 is signed" international law steps
in resulting in irreversible conseDuences e'tremely damaging to the sovereignty and territorial integrity of the
Philippines. No ?@b?eK@e:t r@DA:G or orFer o; t<A? Co@rt cC: @:Fo t<A? terrAbDe FCECGe, or =@t bCcL C
FA?EeEbereF P<ADA==A:e?. 2he initialed M)*#*1 already contains definitive and settled propositions between the
/0P and the MILF" and all that is lac&ing are the signatures of the /0P and MILF representatives to ma&e the M)*#
*1 a binding international agreement.
9.3:
Knder these circumstances" the petitions certainly present an actual
justiciable controversy of transcendental importance to the nation.
2he forum for the resolution of any dispute between the /0P and the MILF under a signed M)*#*1 will not be this
%ourt but the International %ourt of =ustice I%=!" which is not bound to respect the Philippine %onstitution. 2he MILF"
under the sponsorship of any member of the )rgani;ation of Islamic %onference )I%!
9.,:
that recogni;es the
compulsory jurisdiction of the I%="
9.?:
can bring the dispute to the I%=. 2he )I% Special (nvoy for the Peace Process in
Southern Philippines" *mbassador Sayed (lmasry" who is also the Secretary#/eneral of the )I%" is C ?AG:CtorB to
t<e *OA)A". *bove the space reserved for his signature are the words @EN"OR&E" B%.@
* party to the Statute of the I%=" li&e the Philippines" is bound by the I%=Cs determination whether the I%= has
jurisdiction over a dispute.
9.6:
In deciding the issue of jurisdiction" the I%= may or may not follow past precedents in the
light of special circumstances of the case before it. 2he Philippines will be ris&ing dismemberment of the 0epublic in
the hands of an international tribunal that is not bound by the Philippine %onstitution.
More importantly" the A=(" represented by the MILF and endorsed by the )I%" may apply to be a party to the Statute
of the I%= and accept the compulsory jurisdiction of the I%=.
9.+:
* State that recogni;es the compulsory jurisdiction of
the I%= has the right to sue before the I%= any State that has accepted the same compulsory jurisdiction of the I%=.
9.<:

2he fact that the A=( has CDD t<e CttrAb@te? o; C ?tCte" with the ac&nowledged power to enter into international treaties
with foreign countries" gives the A=( the status and legal personality to be a party to a case before the I%=.
9.>:
In fact"
by agreeing in the M)*#*1 that the A=(" on its own" can enter into international treaties"
9..:
the Philippines admits and
recogni;es the international legal personality of the A=(" with the capacity to sue and be sued in international tribunals.
In short" for this %ourt to wait for the signing of the M)*#*1 before assuming jurisdiction will allow an international
74
tribunal to assume jurisdiction over the present petitions" ris&ing the dismemberment of the 0epublic.
It is providential for the Filipino people that this %ourt issued the 2emporary 0estraining )rder enjoining the signing of
the M)*#*1 in the nic& of time on 6 *ugust ,--.. When the %ourt issued the 20)" the members of the /0P Panel
were already on their way to Malaysia to sign the M)*#*1 the following day" + *ugust ,--." before representatives of
numerous states from the )I%" (urope" 8orth *merica" *S(*8 and other parts of *sia. Indeed" public respondents
should be than&ful to this %ourt for saving them from inflicting an ignominious and irreversible catastrophe to the
nation.
PetAtAo:? Not *ooteF
2he claim of respondents that the present petitions are moot because during the pendency of this case the President
decided not to sign the M)*#*1" @in its present form or in any other form"@
9.5:
is erroneous. )nce the %ourt acDuires
jurisdiction over a case" its jurisdiction continues until final termination of the case.
95-:
2he claim of respondents that the
President never authori;ed the /0P Panel to sign the M)*#*1
953:
is immaterial. If the /0P Panel had no such
authority" then their acts in initialing and in intending to sign the M)*#*1 were in grave abuse of discretion amounting
to lac& or e'cess of jurisdiction" vesting this %ourt jurisdiction over the present petitions to declare unconstitutional
such acts of the /0P Panel.
8eedless to say" the claim that the /0P Panel had no authority to sign the M)*#*1 is a grave indictment of the
members of the /0P Panel. *t the very least this shows that the members of the /0P Panel were acting on their own"
without following the instructions from the President as clearly laid down in the ,emorandum of Instructions 1rom 'he
President dated D ,arch FGGD" which states in partB
2his Memorandum prescribes the guidelines for the /overnment 8egotiating Panel /P8P! for the peace negotiation
process with the Moro Islamic Liberation Front MILF!B
3. T<e :eGotACtAo:? ?<CDD be co:F@cteF A: CccorFC:ce >At< t<e EC:FCte? o; t<e P<ADA==A:e Co:?tAt@tAo:,
t<e R@De o; $C>, C:F t<e =rA:cA=De? o; t<e ?oHereAG:tB C:F terrAtorACD A:teGrAtB o; t<e Re=@bDAc o; t<e
P<ADA==A:e?.Z
,. 2he negotiation process shall be pursued in line with the national %omprehensive Peace Process" and shall
see& a principled and peaceful resolution of the armed conflict" >At< :eAt<er bDCEe :or ?@rre:Fer, b@t >At<
FAG:AtB ;or CDD co:cer:eF.
?. 2he objective of the /P8P is to attain a peace settlement that shallB
a. %ontribute to the resolution of the root cause of the armed conflict" and to societal reform"
particularly in Southern PhilippinesJ
b. 7elp attain a lasting peace and comprehensive stability in Southern Philippines under a meaningful
program of autonomy for Filipino Muslims" consistent with the Peace *greement entered into by the
/0P and the M8LF on -, September 355<J and
c. %ontribute to reconciliation and reconstruction in Southern Philippines.
6. 2he general approach to the negotiations shall include the followingB
d. See&ing a middle ground between the aspirations of the MILF and the political" social and economic
objectives of the Philippine /overnmentJ
75
e. %oordinated 2hird Party facilitation" where neededJ
f. Co:?@DtCtAo: >At< C;;ecteF coEE@:AtAe? C:F ?ector?. (mphasis supplied!
Indisputably" the members of the /0P Panel had clear and precise instructions from the President to follow Philippine
constitutional processes and to preserve the national sovereignty and territorial integrity of the Philippines.
95,:
2he
members of the /0P Panel failed to follow their basic instructions from the President" and in the process" they
rec&lessly ris&ed the near dismemberment of the 0epublic.
GDCrA:G HA?torAcCD :Ccc@rCcB A: t<e *OA)A"
2he M)*#*1 li&ewise contains a glaring historical inaccuracy. 2he M)*#*1 declares the Aangsamoro as the single
@First 8ation.@
95?:
2he term @First 8ations@ originated in %anada.
956:
2he term refers to indigenous peoples of a territory"
with the assumption that there are one or more subseDuent nations or ethnic groups" different from the indigenous
peoples" that settled on the same territory. 2hus" in %anada" the Knited States" *ustralia and 8ew Healand" the white
(uropeans settlers are the subseDuent nations belonging to a different ethnic group that conDuered the indigenous
peoples. In %anada" there is not a single First 8ation but more than <-- recogni;ed First 8ations" reflecting the fact
that the indigenous peoples belong to various @nation@ tribes.
In Mindanao" the Lumads who &ept their indigenous beliefs" as well as those who centuries later converted to either
Islam or %hristianity" belong to the same ethnic Malay race. (ven the settlers from Lu;on and Eisayas belong to the
same ethnic Malay race. 1eclaring the Aangsamoros alone as the single @First 8ation@ is a historical anomaly. If
ethnicity alone is the criterion in declaring a First 8ation" then all peoples of Mindanao belonging to the Malay race are
the First 8ations. If resistance to foreign beliefs is the criterion in declaring a First 8ation" then the 3. Lumad groups in
Mindanao are the First 8ations.
When as&ed during the oral arguments why the M)*#*1 declares the Aangsamoros as the single @First 8ation"@ the
Solicitor /eneral answered that @the MILF reDuested that they be considered a First 8ation.@
95+:
2he /0P Panel should
not readily agree to include in the te't of the agreement" an official document" anything that the MILF Panel wants.
%laims to historicity must be verified because historical inaccuracies have no place in a peace agreement that resolves
a dispute rooted to a large e'tent in historical events.
T<e Co?t o; Re=CrCtAo: Co@DF BC:Lr@=t t<e NCtAo:CD GoHer:Ee:t
2he M)*#*1 recogni;es that the AangsamoroCs ancestral domain" homeland and historic territory cover the entire
Mindanao" Sulu and Palawan areas.
95<:
While the M)*#*1 recogni;es @vested property rights"@
95>:
other than licenses
or contracts to e'ploit natural resources which are revocable at will by the A=(" the M)*#*1 reDuires the /overnment
to provide @CFeK@Cte re=CrCtAo:@ to the Aangsamoro for the @unjust dispossession of their territorial and proprietary
rights" customary land tenures" or their marginali;ation.@
95.:
Such unjust dispossession includes not only the lands ta&en
from the Aangsamoro since the arrival of the Spaniards in 3+,3" but also all the natural resources removed from such
lands since 3+,3. In short" the /overnment must pay compensation to the A=( for all titled private lands" as well as all
natural resources ta&en or e'tracted" in Mindanao" Sulu and Palawan.
If the lands are still State owned ## li&e public forests" military and civil reservations" public school sites" public par&s or
sites for government buildings ## the /overnment must return the lands to the A=(. 2he M)*#*1 further states"
@Whenever restoration is no longer possible" the /0P shall ta&e effective measures or adeDuate reparation collectively
beneficial to the Aangsamoro people" in such Duality" Duantity and status to be determined mutually by both Parties.@
2he cost of reparation could ban&rupt the /overnment. 2he ('ecutive branch never consulted %ongress" which
e'ercises e'clusively the power of the purse" about this commitment to pay @adeDuate reparation@ to the A=(" a
reparation that obviously has a gargantuan cost. )f course" under Philippine law %ongress is not bound by this
commitment of the ('ecutive branch. Knder international law" however" the Philippines is bound by such commitment
of the ('ecutive branch.
76
T<ere A? :o "A?CrECEe:t @:Fer t<e *OA)A"
0espondents have repeatedly claimed during the oral arguments that the final comprehensive peace agreement will
lead to the disarmament of the MILF.
955:
7owever" paragraph . on /overnance of the M)*#*1 allows the A=( @to
b@ADF, FeHeDo= C:F ECA:tCA: At? o>: ' ' ' =oDAce C:F A:ter:CD ?ec@rAtB ;orce.@ %learly" the A=(Cs internal security
force is separate from its police. 2he obvious intention is to constitute the present MILF armed fighters into the A=(Cs
internal security force. In effect" there will be no disarmament of the MILF even after the signing of the comprehensive
peace agreement.
2he A=( can deploy its internal security force not only within the @core@
93--:
A=( territory" but also outside of the core
A=( territory" that is" in ancestral lands of the Lumads that are located in %hristian provinces" cities and municipalities.
Knder paragraphs 3 and ? on %oncepts and Principles of the M)*#*1" the Lumads and all their ancestral lands in
Mindanao" Sulu and Palawan are made part of the A=(. T<@?, t<e *OA)A" eHe: CDDo>? t<e *$! to ?tCtAo:
=erEC:e:tDB At? *$! CrEeF ;AG<ter? >At<A: C<rA?tAC: =roHA:ce?, cAtAe? C:F E@:AcA=CDAtAe? o@t?AFe o; t<e core
B'E terrAtorB.
"@tB to Pre?erHe TerrAtorACD :teGrAtB C:F NCtAo:CD &oHereAG:tB
Knder the 3nited !ations Declaration on the Rights of Indigenous Peoples" which is one of the documents referred to
in the 2erms of 0eference of the M)*#*1" the right to self#determination of indigenous peoples does not mean a right
to dismember or impair the territorial integrity or political unity of a sovereign and independent State li&e the
Philippines. *rticle 6< of the 1eclaration statesB
*rticle 6<
3. Not<A:G A: t<A? "ecDCrCtAo: ECB be A:ter=reteF as implying for any State" people" group or person any right to
engage in any activity or to perform any act contrary to the %harter of the Knited 8ations or construed C? C@t<orAMA:G
or e:co@rCGA:G C:B CctAo: ><Ac< >o@DF FA?EeEber or AE=CAr, totCDDB or A: =Crt, t<e terrAtorACD A:teGrAtB or
=oDAtAcCD @:AtB o; ?oHereAG: C:F A:Fe=e:Fe:t &tCte?. (mphasis supplied!
Knder international law" every sovereign and independent State has the inherent right to protect from dismemberment
its territorial integrity" political unity and national sovereignty. 2he duty to protect the territorial integrity" political unity
and national sovereignty of the nation in accordance with the %onstitution is not the duty alone of the ('ecutive
branch. Where the ('ecutive branch is remiss in e'ercising this solemn duty in violation of the %onstitution" this %ourt"
in the appropriate case as in the present petitions" must step in because every member of this %ourt has ta&en a
sworn duty to defend and uphold the %onstitution.
A !A:CD -orF
8o one will dispute that the nation urgently needs peace in Mindanao. 2he entire nation will truly rejoice if peace finally
comes to Mindanao. 2he ('ecutive branch must therefore continue to pursue vigorously a peaceful settlement of the
Moro insurgency in Mindanao. 8o nation can progress and develop successfully while facing an internal armed
conflict.93-3:
7owever" any peace agreement that calls for amendments to the %onstitution" ## ><CteHer t<e CEe:FEe:t? ECB be,
A:cD@FA:G t<e creCtAo: o; t<e B'E )) must be subject to the constitutional and legal processes of the Philippines. 2he
constitutional power of %ongress to propose amendments to the %onstitution" and the constitutional power of the
people to approve or disapprove such amendments" can never be disregarded. 2he ('ecutive branch cannot usurp
such discretionary sovereign powers of %ongress and the people" as the ('ecutive branch did when it committed to
amend the %onstitution to conform to the M)*#*1.
2here must also be proper consultations with all affected sta&eholders" where the %onstitution or e'isting laws reDuire
such consultations. 2he law reDuires consultations for a practical purpose ## to build consensus and popular support
for an initiative" in this case the peace agreement. %onsultations assume greater importance if the peace agreement
calls for constitutional amendments" which reDuire ratification by the people. * peace agreement negotiated in secret"
affecting the peopleCs rights" lives and destinies" that is suddenly sprung on the people as a fait accompli" will face
77
probable rejection in a plebiscite.
In short" a peace agreement that amends the %onstitution can be lasting only if accepted by the people in accordance
with constitutional and legal processes.
*ccordingly" I vote to GRANT the petitions and declare the M)*#*1 #NCON&TT#TONA$.
93:
Paragraph . on /overnance of the M)*#*1 providesB @2he Parties agree that the B'E ?<CDD be eE=o>ereF to
b@ADF, FeHeDo= C:F ECA:tCA: At? o>: A:?tAt@tAo:?, A:cD@?AHe o;" cAHAD ?erHAce, eDectorCD, ;A:C:cACD C:F bC:LA:G,
eF@cCtAo:, DeGA?DCtAo:, DeGCD, eco:oEAc, C:F =oDAce C:F A:ter:CD ?ec@rAtB ;orce, I@FAcACD ?B?teE C:F correctAo:CD
A:?tAt@tAo:?" necessary for developing a progressive Aangsamoro society the details of which shall be discussed in
the negotiation of the %omprehensive %ompact.@ (mphasis supplied!
9,:
Paragraph < on /overnance of the M)*#*1 providesB @2he modalities for the governance intended to settle the
outstanding negotiated political issues are deferred after the signing of the M)*#*1.
2he establishment of institutions for governance in a %omprehensive %ompact" together with its modalities during the
transition period" shall be fully entrenched and established in the bC?Ac DC> o; t<e B'E. 2he Parties shall faithfully
comply with their commitment to the associative arrangements upon entry into force of a %omprehensive %ompact.@
(mphasis supplied!
9?:
Section 3" *rticle EIII of the %onstitution providesB @2he judicial power shall be vested in one Supreme %ourt and in
such lower courts as may be established by law.
=udicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable" and to determine whether or not there has been a grave abuse of discretion amounting
to lac& or e'cess of jurisdiction on the part of any branch or instrumentality of the /overnment.@
96:
Some of these agreements are mentioned in the 2erms of 0eference of the M)*#*1. In their %ompliance dated ,,
September ,--." respondents included the following agreements not mentioned in the 2erms of 0eferenceB 3!
Implementing /uidelines on the 7umanitarian" 0ehabilitation and 1evelopment *spects of the /0P#MILF 2ripoli
*greement on Peace of ,--3 dated > May ,--,J and ,! Implementing /uidelines on the Security *spect of the /0P#
MILF 2ripoli *greement on Peace of ,--3 dated > *ugust ,--3.
9+:
People $& /umahin" 3,. Phil. >,." >+> 35<>!.
9<:
People $& Padasin" 66+ Phil. 66.. 6++ ,--?!.
9>:
/eorge 4. Wal&er" 1(FI8I8/ 2(0MS I8 27( 35., L*W )F 27( S(* %)8E(82I)8 IEB 27( L*S2 0)K81 )F
1(FI8I2I)8S P0)P)S(1 A$ 27( I82(08*2I)8*L L*W *SS)%I*2I)8 *M(0I%*8 A0*8%7! L*W )F 27(
S(* %)MMI22((" %alifornia Western International Law =ournal" Fall ,--+" citing the %ommentary of =ohn (. 8oyes
in the %onsolidated /lossary of 2echnical 2erms Ksed in the Knited 8ations %onvention on the Law of the Sea"
published by the International 7ydrographic )rgani;ation I7)! 2echnical *spects of the Law of the Sea Wor&ing
/roup.
9.:
Michel Aourbonniere and Louis 7aec&" MILI2*0$ *I0%0*F2 *81 I82(08*2I)8*L L*WB %7I%*/) )PKS ?"
=ournal of *ir Law and %ommerce" Summer ,--3.
95:
Id.
93-:
httpBII,,,.abs#cbnnews.comItopftthehour.asp'NStoryId[3,..?6.
78
933:
2S8" ,5 *ugust ,--." pp. 35-#353 and ,?5.
93,:
Id. at ,5>.
93?:
Id. at ,5<#,5..
936:
Memorandum of 0espondents dated ,6 September ,--." p. +<.
93+:
*rticle I on the %onstitution providesB @2he national territory comprises the Philippine archipelago" with all the
islands and waters embraced therein" and all other territories over which the Philippines has sovereignty or jurisdiction"
consisting of its terrestrial" fluvial" and aerial domains" including its territorial sea" the seabed" the subsoil" the insular
shelves" and other submarine areas. 2he waters around" between" and connecting the islands of the archipelago"
regardless of their breadth and dimensions" form part of the internal waters of the Philippines.@
93<:
2S8" ,5 *ugust ,--." p. ,><.
93>:
Section ?" *rticle II of the %onstitution providesB @%ivilian authority is" at all times" supreme over the military. T<e
ArEeF !orce? o; t<e P<ADA==A:e? A? t<e =rotector o; t<e =eo=De C:F t<e &tCte. t? GoCD A? to ?ec@re t<e
?oHereAG:tB o; t<e &tCte C:F t<e A:teGrAtB o; t<e :CtAo:CD terrAtorB.@ (mphasis supplied!
93.:
Paragraph 6 on 0esources of the M)*#*1 providesB @T<e B'E A? ;ree to e:ter A:to C:B eco:oEAc coo=erCtAo:
C:F trCFe reDCtAo:? >At< ;oreAG: co@:trAe?B provided" however" that such relationships and understandings do not
include aggression against the /overnment of the 0epublic of the PhilippinesJ =roHAFeF, ;@rt<er t<Ct At ?<CDD reECA:
t<e F@tB C:F obDAGCtAo: o; t<e Ce:trCD GoHer:Ee:t to tCLe c<CrGe o; e9ter:CD Fe;e:?e. Without prejudice to the
right of the Aangsamoro juridical entity to enter into agreement and environmental cooperation with any friendly
country affecting its jurisdiction" it shall includeB
a. t<e o=tAo: to e?tCbDA?< C:F o=e: BC:G?CEoro trCFe EA??Ao:? A: ;oreAG: co@:trAe? >At< ><Ac< At <C?
eco:oEAc coo=erCtAo: CGreeEe:t?J and
b. the elements bearing in mind the mutual benefits derived from Philippine archipelagic status and security.
*nd" in furtherance thereto" t<e Ce:trCD GoHer:Ee:t ?<CDD tCLe :ece??CrB ?te=? to e:?@re t<e B'EO? =CrtAcA=CtAo:
A: A:ter:CtAo:CD EeetA:G? C:F eHe:t?, e.G. A&EAN EeetA:G? C:F ot<er ?=ecACDAMeF CGe:cAe? o; t<e #:AteF
NCtAo:?. T<A? ?<CDD e:tAtDe t<e B'EO? =CrtAcA=CtAo: A: P<ADA==A:e o;;AcACD EA??Ao:? C:F FeDeGCtAo:? t<Ct Cre
e:GCGeF A: t<e :eGotACtAo: o; borFer CGreeEe:t? or =rotocoD? ;or e:HAro:Ee:tCD =rotectAo:, eK@AtCbDe ?<CrA:G
o; A:coEe? C:F reHe:@e?, A: t<e CreC? o; ?eC, ?eCbeF C:F A:DC:F ?eC? or boFAe? o; >Cter CFICce:t to or
bet>ee: A?DC:F? ;orEA:G =Crt o; t<e C:ce?trCD FoECA:, A: CFFAtAo: to t<o?e o; ;A?<A:G rAG<t?.@ (mphasis
supplied!
935:
Paragraph < on 2erms of 0eference of the M)*#*1 providesB @IL) %onvention 8o. 3<5" in correlation to the #N
"ecDCrCtAo: o: t<e RAG<t? o; t<e :FAGe:o@? Peo=De?" and 0epublic *ct 8o. .?>3 otherwise &nown as the
Indigenous Peoples 0ights *ct of 355>" the #N C<Crter3 t<e #N #:AHer?CD "ecDCrCtAo: o: H@EC: RAG<t?"
:ter:CtAo:CD H@EC:AtCrAC: $C> .H$/" C:F A:ter:CtAo:CDDB recoG:AMeF <@EC: rAG<t? A:?tr@Ee:t?.@ (mphasis
supplied!
9,-:
Section 3" *rticle EI of the %onstitution providesB @T<e DeGA?DCtAHe =o>er ?<CDD be He?teF A: t<e Co:Gre?? o; t<e
P<ADA==A:e? which shall consist of a Senate and a 7ouse of 0epresentatives" e'cept to the e'tent reserved to the
people by the provision on initiative and referendum.@ (mphasis supplied!
9,3:
Paragraph . on /overnance of the M)*#*1" see note 3.
9,,:
Section ,-" *rticle O of the %onstitution providesB @Within its territorial jurisdiction and ?@bIect to t<e =roHA?Ao:? o;
79
t<A? Co:?tAt@tAo: C:F :CtAo:CD DC>?" the organic act of autonomous regions shall provide for legislative powers overB
3! *dministrative organi;ationJ
,! %reation of sources of revenuesJ
?! *ncestral domain and natural resourcesJ
6! Personal" family" and property relationsJ
+! 0egional urban and rural planning developmentJ
<! (conomic" social" and tourism developmentJ
>! (ducational policiesJ
.! Preservation and development of the cultural heritageJ and
5! Such other matters as may be authori;ed by law for the promotion of the general welfare of the people of the
region. (mphasis supplied!
9,?:
Section 3" *rticle EII of the %onstitution providesB @2he e'ecutive power shall be vested in the President of the
Philippines.@
9,6:
Section 6" *rticle O of the %onstitution providesB @T<e Pre?AFe:t o; t<e P<ADA==A:e? ?<CDD e9ercA?e Ge:erCD
?@=erHA?Ao: oHer DocCD GoHer:Ee:t?. Provinces with respect to component cities and municipalities" and cities and
municipalities with respect to component barangays shall ensure that the acts of their component units are within the
scope of their prescribed powers and functions.@ (mphasis supplied!
9,+:
Section 3<" *rticle EII of the %onstitution providesB @T<e Pre?AFe:t ?<CDD :oEA:Cte C:F, >At< t<e co:?e:t o; t<e
CoEEA??Ao: o: A==oA:tEe:t?, C==oA:t the heads of the e'ecutive departments" ambassadors" other public
ministers and consuls" or o;;Acer? o; t<e CrEeF ;orce? ;roE t<e rC:L o; coDo:eD or :CHCD cC=tCA:" and other officers
whose appointments are vested in him in this %onstitution. 7e shall also appoint all other officers of the /overnment
whose appointments are not otherwise provided for by law" and those whom he may be authori;ed by law to appoint.
2he %ongress may" by law" vest the appointment of other officers lower in ran& in the President alone" in the courts" or
in the heads of departments" agencies" commissions" or boards.@ (mphasis supplied!
9,<:
Section 3>" *rticle EII of the %onstitution providesB @2he President shall have control of all the e'ecutive
departments" bureaus" and offices. 7e shall ensure that the laws be faithfully e'ecuted.@
9,>:
Section 3." *rticle EII of the %onstitution providesB @2he President shall be the %ommander#in#%hief of CDD CrEeF
;orce? o; t<e P<ADA==A:e? and whenever it becomes necessary" he may call out such armed forces to prevent or
suppress lawless violence" invasion or rebellion. ' ' '.@ (mphasis supplied!
9,.:
Section ,3" *rticle EII of the %onstitution providesB @8o treaty or international agreement shall be valid and effective
unless concurred in by at least two#thirds of all the Members of the Senate.@
9,5:
See note 3..
9?-:
Section 3" *rticle EIII of the %onstitution providesB @2he judicial power shall be vested in one Supreme %ourt and in
such lower courts as may be established by law.@
9?3:
See note 3.
9?,:
Section , of *rticle EIII providesB @T<e Co:Gre?? ?<CDD <CHe t<e =o>er to Fe;A:e, =re?crAbe, C:F C==ortAo: t<e
I@rA?FActAo: o; HCrAo@? co@rt? but may not deprive the Supreme %ourt of its jurisdiction over cases enumerated in
Section + hereof.
8o law shall be passed reorgani;ing the =udiciary when it undermines the security of tenure of its Members.@
(mphasis supplied!
80
9??:
Section +,!" *rticle EIII of the %onstitution providesB @T<e &@=reEe Co@rt ?<CDD <CHe t<e ;oDDo>A:G =o>er?B
3! ('ercise original jurisdiction over cases affecting ambassadors" other public ministers and consuls" and over
petitions for certiorari" prohibition" mandamus" Duo warranto" and habeas corpus.
,! ReHAe>, reHA?e, reHer?e, EoFA;B, or C;;ArE o: C==eCD or certAorCrA, C? t<e DC> or t<e R@De? o; Co@rt ECB
=roHAFe, ;A:CD I@FGEe:t? C:F orFer? o; Do>er co@rt? A:B
a! *ll cases in which the constitutionality or validity of any treaty" international or e'ecutive agreement" law"
presidential decree" proclamation" order" instruction" ordinance" or regulation is in Duestion.
b! *ll cases involving the legality of any ta'" impost" assessment" or toll" or any penalty imposed in relation thereto.
c! *ll cases in which the jurisdiction of any lower court is in issue.
d! *ll criminal cases in which the penalty imposed is reclusion perpetua or higher.
e! *ll cases in which only an error or Duestion of law is involved.
?! *ssign temporarily judges of lower courts to other stations as public interest may reDuire. Such temporary
assignment shall not e'ceed si' months without the consent of the judge concerned.
6! )rder a change of venue or place of trial to avoid a miscarriage of justice.
+! ProE@DGCte r@De? co:cer:A:G t<e =rotectAo: C:F e:;orceEe:t o; co:?tAt@tAo:CD rAG<t?, =DeCFA:G, =rCctAce,
C:F =roceF@re A: CDD co@rt?" the admission to the practice of law" the Integrated Aar" and legal assistance to the
underprivileged. Such rules shall provide a simplified and ine'pensive procedure for the speedy disposition of cases"
shall be uniform for all courts of the same grade" and shall not diminish" increase" or modify substantive rights. 0ules
of procedure of special courts and Duasi#judicial bodies shall remain effective unless disapproved by the Supreme
%ourt.
<! A==oA:t CDD o;;AcACD? C:F eE=DoBee? o; t<e '@FAcACrB A: CccorFC:ce >At< t<e CAHAD &erHAce $C>.@ (mphasis
supplied!
9?6:
Id.
9?+:
Section <" *rticle EIII of the %onstitution providesB @2he Supreme %ourt shall have administrative supervision over
all courts and the personnel thereof.@
9?<:
Section 5" *rticle EIII of the %onstitution providesB @T<e *eEber? o; t<e &@=reEe Co@rt C:F I@FGe? o; Do>er
co@rt? ?<CDD be C==oA:teF bB t<e Pre?AFe:t ;roE C DA?t o; Ct DeC?t t<ree :oEA:ee? =re=CreF bB t<e '@FAcACD C:F
BCr Co@:cAD ;or eHerB HCcC:cB. Such appointments need no confirmation.
For the lower courts" the President shall issue the appointments within ninety days from the submission of the list.@
(mphasis supplied!
9?>:
Section 33" *rticle EIII of the %onstitution providesB @2he Members of the Supreme %ourt and judges of lower courts
shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge
the duties of their office. T<e &@=reEe Co@rt e: bC:c ?<CDD <CHe t<e =o>er to FA?cA=DA:e I@FGe? o; Do>er co@rt?,
or orFer t<eAr FA?EA??CD by a vote of a majority of the Members who actually too& part in the deliberations on the
issues in the case and voted thereon.@ (mphasis supplied!
9?.:
Section 33!" *rticle IO#A of the %onstitution providesB @T<e CAHAD &erHAce ?<CDD be CFEA:A?tereF bB t<e CAHAD
&erHAce CoEEA??Ao: composed of a %hairman and two %ommissioners who shall be natural#born citi;ens of the
Philippines and" at the time of their appointment" at least thirty#five years of age" with proven capacity for public
administration" and must not have been candidates for any elective position in the elections immediately preceding
their appointment.@ (mphasis supplied!
9?5:
See note 3.
96-:
Section ,3!" *rticle IO#% of the %onstitution providesB @T<e CoEEA??Ao: o: EDectAo:? ?<CDD e9ercA?e t<e
81
;oDDo>A:G =o>er? C:F ;@:ctAo:?B
3! E:;orce C:F CFEA:A?ter CDD DC>? C:F reG@DCtAo:? reDCtAHe to t<e co:F@ct o; C: eDectAo:" plebiscite" initiative"
referendum" and recall.@ (mphasis supplied!
963:
See note 3.
96,:
Section ,3!" *rticle IO#1 of the %onstitution providesB @T<e CoEEA??Ao: o: A@FAt ?<CDD <CHe t<e =o>er,
C@t<orAtB, C:F F@tB to e9CEA:e, C@FAt, C:F ?ettDe CDD Ccco@:t? =ertCA:A:G to t<e reHe:@e C:F receA=t? o;, C:F
e9=e:FAt@re? or @?e? o; ;@:F? C:F =ro=ertB, o>:eF or <eDF A: tr@?t bB, or =ertCA:A:G to, t<e GoHer:Ee:t, or
C:B o; At? ?@bFAHA?Ao:?, CGe:cAe?, or A:?tr@Ee:tCDAtAe?" including government#owned or controlled corporations with
original charters" and on a post#audit basisB a! constitutional bodies" commissions and offices that have been granted
fiscal autonomy under this %onstitutionJ b! autonomous state colleges and universitiesJ c! other government#owned
or controlled corporations and their subsidiariesJ and d! such non#governmental entities receiving subsidy or eDuity"
directly or indirectly" from or through the /overnment" which are reDuired by law or the granting institution to submit to
such audit as a condition of subsidy or eDuity. 7owever" where the internal control system of the audited agencies is
inadeDuate" the %ommission may adopt such measures" including temporary or special pre#audit" as are necessary
and appropriate to correct the deficiencies. It shall &eep the general accounts of the /overnment and" for such period
as may be provided by law" preserve the vouchers and other supporting papers pertaining thereto.@ (mphasis
supplied!
96?:
See note 3.
966:
Section 3" *rticle O of the %onstitution providesB @2he territorial and political subdivisions of the 0epublic of the
Philippines are the provinces" cities" municipalities" and barangays. 2here shall be autonomous regions in Muslim
Mindanao and the %ordilleras as hereinafter provided.@
96+:
Section 6" *rticle O of the %onstitution providesB @T<e Pre?AFe:t o; t<e P<ADA==A:e? ?<CDD e9ercA?e Ge:erCD
?@=erHA?Ao: oHer DocCD GoHer:Ee:t?. Provinces with respect to component cities and municipalities" and cities and
municipalities with respect to component barangays shall ensure that the acts of their component units are within the
scope of their prescribed powers and functions.@ (mphasis supplied!
96<:
Section +" *rticle O of the %onstitution providesB @ECc< DocCD GoHer:Ee:t @:At ?<CDD <CHe t<e =o>er to creCte At?
o>: ?o@rce? o; reHe:@e? C:F to DeHB tC9e?, ;ee?, C:F c<CrGe? ?@bIect to ?@c< G@AFeDA:e? C:F DAEAtCtAo:? C?
t<e Co:Gre?? ECB =roHAFe" consistent with the basic policy of local autonomy. Such ta'es" fees" and charges shall
accrue e'clusively to the local governments.@ (mphasis supplied!
96>:
See note 3.
96.:
Section <" *rticle O of the %onstitution providesB @Local government units shall have a just share" as determined by
law" in the national ta'es which shall be automatically released to them.@
965:
Section 3-" *rticle O of the %onstitution providesB @8o province" city" municipality" or barangay may be created"
divided" merged" abolished" or its boundary substantially altered" e'cept in accordance with the criteria established in
the Local /overnment %ode and ?@bIect to C==roHCD bB C ECIorAtB o; t<e Hote? cC?t A: C =DebA?cAte A: t<e =oDAtAcCD
@:At? FArectDB C;;ecteF.@ (mphasis supplied!
9+-:
Paragraph ,d! on 2erritory of the M)*#*1 provides. @Without derogating from the reDuirements of prior
agreements" the /overnment stipulates to conduct and deliver" using all possible legal measures" within twelve 3,!
months following the signing of the M)*#*1" C =DebA?cAte coHerA:G t<e CreC? e:@EerCteF A: t<e DA?t C:F Fe=ActeF
A: t<e EC= C? CCteGorB A CttCc<eF <ereA: the @*nne'@!.@ (mphasis supplied!
9+3:
Section 3+" *rticle O of the %onstitution providesB @2here shall be created autonomous regions in Muslim Mindanao
82
and in the %ordilleras consisting of provinces" cities" municipalities" and geographical areas sharing common and
distinctive historical and cultural heritage" economic and social structures" and other relevant characteristics >At<A: t<e
;rCEe>orL o; t<A? Co:?tAt@tAo: C:F t<e :CtAo:CD ?oHereAG:tB C? >eDD C? terrAtorACD A:teGrAtB o; t<e Re=@bDAc o;
t<e P<ADA==A:e?.@ (mphasis supplied!
9+,:
Section 3<" *rticle O of the %onstitution providesB @2he President shall e'ercise general supervision over
autonomous regions to ensure that the laws are faithfully e'ecuted.@
9+?:
Section 3>" *rticle O of the %onstitution providesB @*ll powers" functions" and responsibilities not granted by this
%onstitution or by law to the autonomous regions shall be vested in the 8ational /overnment.@
9+6:
Section 3." *rticle O of the %onstitution providesB @2he %ongress shall enact an organic act for each autonomous
region with the assistance and participation of the regional consultative commission composed of representatives
appointed by the President from a list of nominees from multisectoral bodies. 2he organic act shall define the basic
structure of government for the region consisting of the e'ecutive department and legislative assembly" both of which
shall be elective and representative of the constituent political units. T<e orGC:Ac Cct? ?<CDD DALe>A?e =roHAFe ;or
?=ecACD co@rt? >At< =er?o:CD, ;CEADB, C:F =ro=ertB DC> I@rA?FActAo: co:?A?te:t >At< t<e =roHA?Ao:? o; t<A?
Co:?tAt@tAo: C:F :CtAo:CD DC>?.
2he creation of the autonomous region shall be effective when approved by majority of the votes cast by the
constituent units in a plebiscite called for the purpose" provided that only provinces" cities" and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region.@
9++:
See note ,.
9+<:
See note ,,.
9+>:
Section ,3" *rticle O of the %onstitution providesB @T<e =re?erHCtAo: o; =eCce C:F orFer >At<A: t<e reGAo:? ?<CDD
be t<e re?=o:?AbADAtB o; t<e DocCD =oDAce CGe:cAe? ><Ac< ?<CDD be orGC:AMeF, ECA:tCA:eF, ?@=erHA?eF, C:F
@tADAMeF A: CccorFC:ce >At< C==DAcCbDe DC>?. 2he defense and security of the regions shall be the responsibility of
the 8ational /overnment.@ (mphasis supplied!
9+.:
See note 3.
9+5:
Section ," paragraph 3" *rticle OII of the %onstitution providesB @ADD DC:F? o; t<e =@bDAc FoECA:" waters" minerals"
coal" petroleum" and other mineral oils" all forces of potential energy" fisheries" forests or timber" wildlife" flora and
fauna" C:F ot<er :Ct@rCD re?o@rce? Cre o>:eF bB t<e &tCte. With the e'ception of agricultural lands" all other
natural resources shall not be alienated. 2he e'ploration" development" and utili;ation of natural resources shall be
under the full control and supervision of the State. 2he State may directly underta&e such activities" or it may enter into
co#production" joint venture" or production#sharing agreements with Filipino citi;ens" or corporations or associations at
least si'ty per centum of whose capital is owned by such citi;ens. Such agreements may be for a period not e'ceeding
twenty#five years" renewable for not more than twenty#five years" and under such terms and conditions as may be
provided by law. In cases of water rights for irrigation" water supply" fisheries" or industrial uses other than the
development of water power" beneficial use may be the measure and limit of the grant.@ (mphasis supplied!
9<-:
Paragraph ? on %oncepts and Principles of the M)*#*1 providesB @Aoth Parties ac&nowledge that C:ce?trCD
FoECA: Foe? :ot ;orE =Crt o; t<e =@bDAc FoECA: b@t e:coE=C??e? ancestral" communal" and customary lands"
maritime" fluvial and alluvial domains C? >eDD C? CDD :Ct@rCD re?o@rce? t<ereA: that have inured or vested ancestral
rights on the basis of native title. A:ce?trCD FoECA: and ancestral land refer to those held under claim of ownership"
occupied or =o??e??eF, by themselves or through the ancestors of the Aangsamoro people" communally or
individually ?A:ce tAEe AEEeEorACD co:tA:@o@?DB to t<e =re?e:t, e9ce=t ><e: =reHe:teF bB >Cr, cAHAD
FA?t@rbC:ce, ;orce ECIe@re, or ot<er ;orE? o; =o??AbDe @?@r=CtAo: or FA?=DCceEe:t bB ;orce, FeceAt, ?teCDt<, or
C? C co:?eK@e:ce o; GoHer:Ee:t =roIect or C:B ot<er HoD@:tCrB FeCDA:G? e:tereF A:to bB t<e GoHer:Ee:t C:F
83
=rAHCte A:FAHAF@CD?, cor=orCte e:tAtAe? or A:?tAt@tAo:?.@ (mphasis supplied!
9<3:
Paragraph 3 on %oncepts and Principles of the M)*#*1 providesB @t A? t<e bArt<rAG<t o; CDD *oro? C:F CDD
:FAGe:o@? =eo=De? o; *A:FC:Co to AFe:tA;B t<eE?eDHe? C:F be Ccce=teF C? JBC:G?CEoro?@. T<e BC:G?CEoro
=eo=De re;er? to t<o?e ><o Cre :CtAHe? or orAGA:CD A:<CbAtC:t? o; *A:FC:Co C:F At? CFICce:t A?DC:F? A:cD@FA:G
PCDC>C: C:F t<e &@D@ Crc<A=eDCGo Ct t<e tAEe o; co:K@e?t or coDo:AMCtAo: o; At? Fe?ce:FC:ts whether mi'ed or
of full blood. Spouses and their descendants are classified as Aangsamoro. 2he freedom of choice of the Indigenous
people shall be respected.@ (mphasis supplied!
9<,:
Section 5" *rticle OII of the %onstitution providesB @T<e Co:Gre?? ECB e?tCbDA?< C: A:Fe=e:Fe:t eco:oEAc C:F
=DC::A:G CGe:cB <eCFeF bB t<e Pre?AFe:t" which shall" after consultations with the appropriate public agencies"
various private sectors" and local government units" recommend to %ongress" and implement continuing integrated
and coordinated programs and policies for national development.
Kntil the %ongress provides otherwise" the 8ational (conomic and 1evelopment *uthority shall function as the
independent planning agency of the government.@ (mphasis supplied!
9<?:
Section ,-" *rticle OII of the %onstitution providesB @T<e Co:Gre?? ?<CDD e?tCbDA?< C: A:Fe=e:Fe:t ce:trCD
Eo:etCrB C@t<orAtB, the members of whose governing board must be natural#born Filipino citi;ens" of &nown probity"
integrity" and patriotism" the majority of whom shall come from the private sector. 2hey shall also be subject to such
other Dualifications and disabilities as may be prescribed by law. 2he authority shall provide policy direction in the
areas of money" ban&ing" and credit. It shall have supervision over the operations of ban&s and e'ercise such
regulatory powers as may be provided by law over the operations of finance companies and other institutions
performing similar functions.
Kntil the %ongress otherwise provides" the %entral Aan& of the Philippines" operating under e'isting laws" shall
function as the central monetary authority.@ (mphasis supplied!
9<6:
See note 3.
9<+:
Section 6" *rticle OEI of the %onstitution providesB @2he *rmed Forces of the Philippines shall be composed of a
citi;en armed force which shall undergo military training and serve" as may be provided by law. t ?<CDD Lee= C reG@DCr
;orce :ece??CrB ;or t<e ?ec@rAtB o; t<e &tCte.@ (mphasis supplied!
9<<:
See note 3.
9<>:
Section +<!" *rticle OEI of the %onstitution providesB @2he officers and men of the regular force of the armed forces
shall be recruited proportionately from all provinces and cities as far as practicable.@
9<.:
Section <" *rticle OEI of the %onstitution providesB @2he State shall establish and maintain o:e =oDAce ;orce, ><Ac<
?<CDD be :CtAo:CD A: ?co=e C:F cAHADAC: A: c<CrCcter, to be CFEA:A?tereF C:F co:troDDeF bB C :CtAo:CD =oDAce
coEEA??Ao:. 2he authority of local e'ecutives over the police units in their jurisdiction shall be provided by law.@
(mphasis supplied!
9<5:
See note 3.
9>-:
Philippine Dail" Inquirer" ,> *ugust ,--.J see also httpEnewsinfo&inquirer&netinquirerheadlines
nation$iewFGGIGIFA-DHAGCCRespect-our-domain-lumad-tell-,oro-rebs.
9>3:
Section ,," *rticle II of the %onstitution providesB @2he State recogni;es and promotes the rights of indigenous
cultural communities within the framewor& of national unity and development.@
9>,:
Section +" *rticle OII of the %onstitution providesB @2he State" subject to the provisions of this %onstitution and
84
national development policies and programs" shall protect the rights of indigenous cultural communities to their
ancestral lands to ensure their economic" social" and cultural well#being.
2he %ongress may provide for the applicability of customary laws governing property rights or relations in determining
the ownership and e'tent of ancestral domain.@
9>?:
Section 3< of the Indigenous PeoplesC 0ights *ct of 355> 0* 8o. .?>3! providesB @Right to Participate in Decision-
,aking& ## I%%sIIPs have the right to participate fully" if they so choose" Ct CDD DeHeD? o; FecA?Ao:)ECLA:G A: ECtter?
><Ac< ECB C;;ect t<eAr rAG<t?, DAHe? C:F Fe?tA:Ae? through procedures determined by them as well as to maintain
and develop their own indigenous political structures. %onseDuently" the State shall ensure that the I%%sIIPs shall be
given mandatory representation in policy#ma&ing bodies and other local legislative councils.@ (mphasis supplied!
9>6:
See note >-J 2S8" ,5 *ugust ,--." p. 3.?.
9>+:
*dopted overwhelmingly by the Knited 8ations /eneral *ssembly by a vote of 36?#+ on 3? September ,-->. 2hose
who voted against were the Knited States" %anada" *ustralia and 8ew Healand.
9><:
Section 3-" *rticle O of the %onstitution providesB @8o province" city" municipality" or barangay may be created"
divided" merged" abolished" or At? bo@:FCrB ?@b?tC:tACDDB CDtereF" e'cept in accordance with the criteria established
in the Local /overnment %ode and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.@ (mphasis supplied!
9>>:
=ustice Eicente E. Mendo;a ret.!" 'he 0egal Significance of the ,-. on the (angsamoro .ncestral Domain"
lecture delivered at the %ollege of Law" Kniversity of the Philippines on + September ,--..
9>.:
Paragraph 6 on 0esources of the M)*#*1J see note 3..
9>5:
See note >>.
9.-:
*rticle ,> of the 35<5 Eienna %onvention on the Law of 2reaties providesB @* party may not invo&e the provisions of
its internal law as justification for its failure to perform a treaty.@
9.3:
T<e A:AtACDA:G o; t<e *OA)A" FAF :ot bA:F t<e GRP to t<e *OA)A". 2he initialing was merely intended by the
parties to authenticate the te't of the M)*#*1. *rticle 3," ,a! of the 35<5 Eienna %onvention on the Law of 2reaties
states that @the initialing of a te't constitutes a signature of the treaty when it is established that the negotiating States
so agreed.@
9.,:
2he Malaysia Foreign Minister" the Special *dviser to the Malaysian Prime Minister" and the Secretary of Foreign
*ffairs of the Philippines are witnesses to the M)*#*1.
9.?:
2he Philippines" as a member of the Knited 8ations" is ipso facto a party to the Statute of the International %ourt of
=ustice *rticle 5?
93:
" Knited 8ations %harter!. 2he Philippines signed on 3. =anuary 35>, the 1eclaration 0ecogni;ing
the =urisdiction of the I%= as %ompulsory. *t least 3- members of the )rgani;ation of Islamic %onference have also
signed the 1eclaration.
9.6:
*rticle ?<<! of the Statute of the I%= providesB @In the event of a dispute as to whether the %ourt has jurisdiction"
the matter shall be settled by the decision of the %ourt.@
9.+:
*rticle 5?,! of the %harter of the Knited 8ations providesB @* state which is not a Member of the Knited 8ations
may become a party to the Statute of the International %ourt of =ustice on conditions to be determined in each case by
the /eneral *ssembly upon the recommendation of the Security %ouncil.@
9.<:
*rticle ?<,! of the Statute of the International %ourt of =ustice providesB
85
*02I%L( ?<
3. ' ' '
,. 2he states parties to the present Statute may at any time declare that they recogni;e as compulsory ipso facto and
without special agreement" in relation to any other state accepting the same obligation" the jurisdiction of the %ourt in
all legal disputes concerningB
a. the interpretation of a treatyJ
b. any Duestion of international lawJ
c. the e'istence of any fact which" if established" would constitute a breach of an international obligationJ
d. the nature or e'tent of the reparation to be made for the breach of an international obligation.
9.>:
*rticle ?63! of the Statute of the I%= providesB @)nly states may be parties in cases before the %ourt.@
9..:
See note 3..
9.5:
Memorandum of 0espondents dated ,6 September ,--." p. >.
95-:
People $& 9era" /.0. 8o. ,<+?5" ,. February 355-" 3., S%0* .--" .-5.
953:
2S8" ,5 *ugust ,--." pp. 3+6#3++.
95,:
2he PresidentCs Memorandum of Instructions dated . September ,--? reiterated verbatim paragraph 3 of the
Memorandum of Instructions from the President dated 3 March ,--3.
95?:
Paragraph 6 on %oncepts and Principles of the M)*#*1 providesB @Aoth Parties ac&nowledge that the right to self#
governance of the Aangsamoro people is rooted on ancestral territoriality e'ercised originally under the su;erain
authority of their sultanates and the Pat a Pangampong &u 0anaw. 2he Moro sultanates were states or
&arajaanI&adatuan resembling a body politic endowed with all the elements of nation#state in the modern sense. *s a
domestic community distinct from the rest of the national communities" they have a definite historic homeland. T<eB
Cre t<e J!Ar?t NCtAo:J >At< Fe;A:eF terrAtorB C:F >At< C ?B?teE o; GoHer:Ee:t <CHA:G e:tereF A:to treCtAe? o;
CEAtB C:F coEEerce >At< ;oreAG: :CtAo:?. 2he Parties concede that the ultimate objective of entrenching the
Aangsamoro homeland as a territorial space is to secure their identity and posterity" to protect their property rights and
resources as well as to establish a system of governance suitable and acceptable to them as distinct dominant
people.@ (mphasis supplied!
956:
See Story of the *ssembly of First 8ations" httpBIIwww.afn.caIarticle.aspNid[+5.
95+:
2S8" ,5 *ugust ,--." pp. >3. and >,3.
95<:
Paragraphs 3 and ? on %oncepts and Principles of the M)*#*1J see notes 65 and +-J Paragraph 3 on 2erritory of
the M)*#*1 providesB @2he Aangsamoro homeland and historic territory refer to the land mass as well as the
maritime" terrestrial" fluvial and alluvial domains" and the aerial domain" the atmospheric space above it" embracing the
Mindanao#Sulu#Palawan geographic region. 7owever" delimitations are contained in the agreed Schedules
%ategories!.@
95>:
Paragraph > on %oncepts and Principles of the M)*#*1 providesB @Eested property rights upon the entrenchment
of the A=( shall be recogni;ed and respected subject to paragraph 5 of the strand on 0esources.@
95.:
Paragraph > on 0esources of the M)*#*1 providesB @T<e DeGAtAECte GrAeHC:ce? o; t<e BC:G?CEoro =eo=De
CrA?A:G ;roE C:B @:I@?t FA?=o??e??Ao: o; t<eAr terrAtorACD C:F =ro=rAetCrB rAG<t?, c@?toECrB DC:F te:@re?, or
t<eAr ECrGA:CDAMCtAo: ?<CDD be CcL:o>DeFGeF. Whenever restoration is no longer possible" the /0P shall ta&e
effective measures or adeDuate reparation collectively beneficial to the Aangsamoro people" in such Duality" Duantity
86
and status to be determined mutually by both Parties.@ (mphasis supplied!
955:
2S8" ,5 *ugust ,--." p. >-6.
93--:
Paragraph ,c! on 2erritory of the M)*#*1 providesB @2he Parties affirm that the core of the A=( shall constitute
the present geographic area of the *0MM" including the municipalities of Aaloi" Munai" 8unungan" Pantar" 2agoloan
and 2ang&al in the province of Lanao del 8orte that voted for inclusion in the *0MM during the ,--3 plebiscite.@
93-3:
Paul %ollier calls internal armed conflicts @FeHeDo=Ee:t A: reHer?e.@ De$elopment and 5onflict" %entre for the
Study of *frican (conomies" 1epartment of (conomics" )'ford Kniversity" 3 )ctober ,--6.
&EPARATE CONC#RRNG AN" "&&ENTNG OPNON
$EONAR"O)"E CA&TRO, $.8
I vote to consider the cases moot and academic considering the manifestation in the Memorandum" dated September
,6" ,--." filed by the )ffice of the Solicitor /eneral )S/! thatB
@' ' ' 2he ('ecutive 1epartment has repeatedly and categorically stated that t<e *OA)A" >ADD :ot be ?AG:eF A: At?
=re?e:t ;orE or A: C:B ot<er ;orE. 2he %hief ('ecutive has in fact gone to the e'tent of dissolving the /overnment
of the 0epublic of the Philippines /0P! Panel and has decided to ta&e on a different tac& and launch tal&s" no longer
with rebels or rebel groups" but with more peace#loving community#based groups. ' ' '@
93:
2his development renders unnecessary a detailed analysis of each of the stipulations contained in the said M)*#*1"
which have grave constitutional implications on the sovereignty" territorial integrity and constitutional processes of the
0epublic of the Philippines" all of which are non#negotiable when viewed in the conte't of the nature of the internal
conflict it see&s to address and the state of our nation today.
I believe this is a prudent move on the part of the ('ecutive 1epartment. Ay the very essence of our republican and
democratic form of government" the outcome of our constitutional processes" particularly the legislative process and
the constituent process of amending the constitution" cannot be predetermined or predicted with certainty as it is made
to appear by the consensus points of the M)*#*1. %onseDuently" it is beyond the authority of any negotiating panel to
commit the implementation of any consensus point or a legal framewor& which is inconsistent with the present
%onstitution or e'isting statutes.
Moreover" our constitutional processes are well#defined by various provisions of the %onstitution. 2he establishment of
a political and territorial @space@ under a so#called Aangsamoro =uridical (ntity A=(! is nowhere to be found in the
35.> %onstitution" which provides for the countryCs territorial and political subdivisions as followsB
@2he territorial and political subdivisions of the 0epublic of the Philippines are the provinces" cities" municipalities" and
barangays. 2here shall be autonomous regions in Muslim Mindanao and the %ordilleras as hereinafter provided.@
9,:
In the case of the autonomous regions" their creation is the shared responsibility of the political branches of the
government and the constituent units affected. 2he %onstitution is e'plicit in this regard" to witB
@2he Co:Gre?? shall enact an organic act for each autonomous region >At< t<e C??A?tC:ce C:F =CrtAcA=CtAo: o; t<e
reGAo:CD co:?@DtCtAHe coEEA??Ao: coE=o?eF o; re=re?e:tCtAHe? C==oA:teF bB t<e Pre?AFe:t from a list of
nominees from multisectoral bodies. 2he organic act shall define the basic structure of government for the region
consisting of the e'ecutive department and legislative assembly" both of which shall be elective and representative of
the constituent political units. 2he organic acts shall li&ewise provide for special courts with personal" family" and
property law jurisdiction consistent with the provisions of this constitution and national law.
2he creation of the autonomous region shall be effective when approved by majority of the votes cast by the
constituent units in a plebiscite called for the purpose" provided that only provinces" cities" and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region.@
9?:
(mphasis supplied!
87
If the establishment of autonomy reDuires the joint participation of %ongress" the President" and of the people in the
area affected" ;roE t<e A:ce=tAo: o; t<e =roce?? o; creCtAo: o; C: C@to:oEo@? reGAo:" with more reason" the
creation of the A=( # an entity intended to have its own basic law to be adopted in accordance with an @associative
arrangement@ # which would imply" in legal terms" semi#independence if not outright independence # cannot be
negotiated without the participation of %ongress and consultations with the people" residing not only in the area to be
placed under the A=( but also in the rest of our country. (ven with the participation of %ongress and the consultation
with sta&eholders" the =roce?? Ct t<e o:?et must conform and e'plicitly be subject to our %onstitution. 2his is
specially important as the unsigned M)*#*1 stipulates a definite framewor& that threatens to erase" through the
@policies" rules and regulations@ and basic law of the A=(" the objective e'istence of over four hundred 6--! years of
development and progress of our people by unsettling private voluntary agreements and undoing the official acts of
our government institutions performed pursuant to the %onstitution and the laws in force during the said long period in
our history" within the identified areas" to be carved out of a substantial portion of the national territory" and with only
the @details@" the @mechanisms and modalities for actual implementation@ to be negotiated and embodied in a
%omprehensive %ompact. 2o my mind" this alarming possibility contemplated in the M)*#*1 may be the cause of
chaos and even greater strife for our brothers in the south" rather than bring about the intended peace.
93:
)S/ Memorandum September ,6" ,--.!" pp. >#..
9,:
*rticle O" Section ," 35.> %onstitution.
9?:
*rticle O" Section 3." 35.> %onstitution.
CONC#RRNG AN" "&&ENTNG OPNON
BRON, $.B
T<e PetAtAo:? ;or *C:FCE@?
I concur with the ponencia's conclusion that the mandamus aspect of the present petitions has been rendered moot
when the respondents provided this %ourt and the petitioners with the official copy of the final draft of the
Memorandum of *greement on *ncestral 1omain ,-.-.D!.
93:
T<e PetAtAo:? ;or Pro<AbAtAo:
I li&ewise concur with the implied conclusion that the @non#signing of the M)*#*1 and the eventual dissolution of the
/overnment of the 0epublic of the Philippines /0P! panel mooted the prohibition aspect of the petitions"@ but
disagree that the e'ception to the @moot and academic@ principle should apply. 2he ponencia alternatively claims that
the petitions have not been mooted. I li&ewise dissent from this conclusion.
C. T<e &onencia C:F t<e *oot C:F AcCFeEAc PrA:cA=De.
*s basis for its conclusion" the ponencia cites Da$id $& ,acapagal-.rro"o
9,:
for its holding that @Mthe moot and
academicC principle not being a magical formula that automatically dissuades courts in resolving a case" it 9the %ourt:
will decide cases" otherwise moot and academic" if it feels that a! there is a grave violation of the %onstitutionJ
9?:
b!
the situation is of e'ceptional character and paramount public interest is involvedJ
96:
c! the constitutional issue raised
reDuires formulation of controlling principles to guide the bench" the bar and the publicJ
9+:
and d! the case is capable of
repetition yet evading review.@
9<:
In further support of its position on the mootness issue" the ponencia additionally cites the *merican ruling that @once a
suit is filed and the doer voluntarily ceases the challenged conduct" it does not automatically deprive the tribunal of
88
power to hear and determine the case and does not render the case moot especially when the plaintiff see&s damages
or prays for injunctive relief against the possible recurrence of the violation.@
9>:
b. T<e Co:te9t o; t<e J*oot C:F AcCFeEAcJ PrA:cA=De.
2he cited Da$id $& ,acapagal-.rro"o defines a JEoot C:F CcCFeEAcJ cC?e to be %one that ceases to present a
justiciable contro$ers" b" $irtue of super$ening e$ents# so that a declaration thereon would be of no practical use or
$alue&% It goes on to state that @generally" courts decline jurisdiction over such cases and dismiss it on the ground of
mootness.@
9.:
2his pronouncement traces its current roots from the e'press constitutional rule under the second
paragraph of Section 3" *rticle EIII of the 35.> %onstitution that @9j:udicial power includes the duty of the courts of
justice to settle actual contro$ersies involving rights which are legally demandable and enforceable...@ 2his rule" which
can conveniently be called the traditional concept of judicial power" has been e'panded under the 35.> %onstitution to
include the power @to determine whether or not there has been grave abuse of discretion amounting to lac& or e'cess
of jurisdiction on the part of any branch or instrumentality of the /overnment.@
Whether under the traditional or the e'panded concept" judicial power must be based on an actual justiciable
contro$ers" at whose core is the e'istence of a case involving rights which are legally demandable and enforceable.
Without this feature" courts have no jurisdiction to act. (ven a petition for declaratory relief
95:
# a petition outside the
original jurisdiction of this %ourt to entertain # must involve an actual controversy that is ripe for adjudication.
93-:
In light
of these reDuirements" any e'ception that this %ourt has recogni;ed to the rule on mootness as e'pressed" for
e'ample" in the cited Da$id $& ,acapagal-.rro"o! is justified only by the implied recognition that a continuing
controversy e'ists.
Specifically involved in the e'ercise of judicial power in the present petitions is the %ourtCs power of judicial review" i&e&#
the power to declare the substance" application or operation of a treaty" international agreement" law" presidential
decree" proclamation" order" instruction" ordinance" or regulation unconstitutional.
933:
* first reDuisite for judicial review
is that there be an @actual case@ calling for the e'ercise of judicial power. Fr. =oaDuin Aernas" S.=." an eminent
constitutional law e'pert" comments in this regard that #
2his is a manifestation of the commitment to the adversarial system. 7ence" the %ourt has no authority to pass upon
issues of constitutionality through advisory opinions and it has no authority to resolve hypothetical or feigned
constitutional problems or friendly suits collusively arranged between parties without real adverse interests. !or will
the 5ourt normall" entertain a petition touching on an issue that has become moot because then there would no
longer be a Jflesh and blood' case for the 5ourt to resol$e&@ 9%itations deleted" emphasis supplied.:
93,:
)ther than the rule on actual case and standing which aspect this separate opinion does not cover!" jurisprudence
holds that this %ourt will not touch upon the issue of constitutionality unless it is una$oidable or is the $er" lis mota&
93?:

*s will be discussed in refuting the ponenciaCs various positions" this rule finds special application in the present case
in light of the political sensitivity of the peace tal&s with the MILF and the issues it has placed on the agenda" namely"
peace and order in Mindanao and the MILFCs aspirations for freedom.
My disagreement with the ponencia on the application of the e'ceptions to the mootness principle of Da$id $&
,acapagal-.rro"o is essentially based on how the mootness principle and its e'ceptions should be applied. While the
mootness principle is @not a magical formula that automatically dissuades courts in resolving cases"@ so also should
the e'ceptions not be considered magical formulas that should apply when the %ourt is minded to conduct a review
despite the mootness of a petition. In other words" where an issue is moot on its face" the application of any of the
e'ceptions should be subjected to a strict test because it is a deviation from the general rule. 2he %ourt should
carefully test the e'ceptions to be applied from the perspectives both of legality and practical effects" and show by
these standards that the issue absolutely reDuires to be resolved.
Fo :ot beDAeHe t<Ct t<e e9ce=tAo:? >ere ?o te?teF C:F co:?AFereF @:Fer t<e ponencia.
c. T<e Po:e:cACO? Po?AtAo:? Re;@teF
A. *oot:e?? C:F t<A? Co@rtO? TRO
89
* first point the ponencia stresses with preeminence in its discussion of the mootness issue is the observation that @the
signing of the M)*#*1 did not push through due to the courtCs issuance of a 2emporary 0estraining )rder.@ 2he
implication" it seems" is that the intervening events subseDuent to the filing of the petition and the issuance of the
temporary restraining order 'R-! # specifically" the respondentsC commitment that the M)*#*1 shall not be signed in
its present form or in any other form"
936:
and the PresidentCs act of dissolving the /0P negotiating panel
93+:
# had no
effect on the petitions because the signing of the M)*#*1 had by then been stopped by our 20). I find this a
disturbing implication as the petitions for prohibition presented li$e contro$ersies up to and be"ond the issuance of this
5ourt's 'R-K the" were rendered moot onl" b" the abo$e mentioned inter$ening e$ents& Ay these intervening and
uneDuivocal acts" the respondents effectively ac&nowledged that the M)*#*1 should indeed not be signed as
demanded by the petition. 2hus" the 20) from this %ourt only immediately ensured that the M)*#*1 would not be
signed until this %ourt had spo&en on the constitutional and statutory grounds cited by the petitions" but it was the
respondentsC acts that removed from controversy the issue of whether the M)*#*1 should be signed or not. In simpler
terms# after the respondents declared that the ,-.-.D would not be signed# there was nothing left to prohibit and no
rights on the part the petitioners continued to be at risk of $iolation b" the ,-.-.D. 2hus" further discussion of the
constitutionality of the M)*#*1 now serves no useful purposeJ as the discussion below will show" there may even be a
considerable downside for our national interests if we inject another factor and another actor in the Mindanao conflict
by ruling on the unconstitutionality of the M)*#*1.
AA. *oot:e?? C:F Co:?tAt@tAo:CD E=DAcCtAo:?
2he ponencia posits as well that the M)*#*1 has not been mooted because it has far#reaching constitutional
implications and contains a commitment to amend and effect necessary changes to the e'isting legal framewor&. 2he
same reason presented above suffices to defuse the ponenciaCs fear about the adverse constitutional effects the M)*#
*1 may bring or might have broughtB without a signed ,-.-.D none of these feared constitutional consequences can
arise&
From another perspective" what the ponencia appears to fear are the constitutional violations and adverse
conseDuences of a signed and effecti$e M)*#*1. 2hese fears" however" are relegated to the realm of speculation with
the cancellation of the signing of the M)*#*1 and the commitment that it shall not be signed in its present or any other
form. %oupled with the subseDuent dissolution of the /0P negotiating panel" t<e GoHer:Ee:t co@DF :ot <CHe
coEE@:AcCteF C:F co:HeBeF C:B ?tro:Ger Ee??CGe, short of totally scuttling the whole peace process, t<Ct At
>C? :ot Ccce=tA:G t<e =oA:t? coHereF bB t<e CborteF *OA)A". /overnment motivation for disavowing the aborted
agreement is patently evident from ('ecutive )rder 8o. ? that outlines the governmentCs visions and intentions in the
conduct of peace negotiations. 2hat the /0P negotiating panel came up with a different result is a matter between the
('ecutive and the negotiating panel and may be the immediate reason why the ('ecutiveCs response was to forthwith
dissolve the negotiating panel.
AAA. GRP ObDAGCtAo: to "A?c@?? A:ce?trCD "oECA:
* consistent concern that runs through the ponencia is that the Philippines is bound under the /0P#MILF 2ripoli
*greement on Peace signed by the government and the MILF in =une ,--3 to have an agreement on the Aangsamoro
ancestral domain. 2his concern led the ponencia to conclude that the government decision not to sign the M)*#*1 will
not render the present petitions moot. In other words" the M)*#*1 will recur and hence should be reviewed now.
* basic flaw in this conclusion is its unstated premise that the Philippines is bound to come to an agreement on
ancestral domain" thereby eDuating the commitment to discuss this issue with the obligation to ha$e an agreement. 2o
Duote the ponencia's cited 2ripoli *greement of =une ,--3"
93<:
the provision on *ncestral 1omain *spect readsB
)n the aspect of ancestral domain" the Parties" in order to address the humanitarian and economic needs of the
Aangsamoro people and preserve their social and cultural heritage and inherent rights over their ancestral domain"
CGree t<Ct t<e ?CEe be FA?c@??eF ;@rt<er by the Parties in their ne't meeting.@ 9(mphasis supplied.:
Knder these terms" it is plain that the /0PCs commitment e'tends onl" to the discussion of the ancestral domain issue.
2he agreement to discuss" however" does not bind the /0P to come to an agreementJ the /0P is merely bound to tr"
90
to reach an agreement or compromise& Implicit in this commitment is that the Philippines can always say @no@ to
unacceptable proposals or wal& away from the discussion if it finds the proposed terms unacceptable. 2his option has
not been removed from the Philippines under any of the duly signed agreements on the Mindanao peace process.
beDAeHe t<Ct t<A? A? t<e Ee??CGe t<Ct ?<o@DF coEe o@t A: boDF reDAe;, :ot t<e ponencia)s EA?reCFA:G o; t<e '@:e
2001 CGreeEe:t.
With the present M)*#*1 effectively scuttled" the parties are bac& to the above Duoted agreement under which the
/0P bound itself to discuss ancestral domain with the MILF as part of the overall peace process. If the ponencia's fear
relates to the substance of these future talks" these matters are not for this %ourt to rule upon as they belong to the
realm of policy # a matter for other branches of government other than the =udiciary to determine. 2his %ourt can only
spea& with full force and authority on ripe" live" and actual controversies involving violations of constitutional or
statutory rights.
93>:
*s a rule" courts loo& bac& to past actions" using the %onstitution" laws" rules and regulations as
standards" to determine disputes and violations of constitutional" and statutory rightsJ the legislature and the e'ecutive"
on the other hand" loo& forward to address present and future situations and developments" with their actions limited
by e'isting constitutional" statutory and regulatory parameters that the courts are duty#bound to safeguard. 2hus" if this
%ourt can spea& at all on the substance of future tal&s" this can only be by way of a reminder that the governmentCs
positions can only be within constitutional and statutory parameters and subject to the strict observance of reDuired
constitutional and statutory procedures if future changes to the constitution and to current statutes are contemplated.
AH. *oot:e?? C:F PCrCEo@:t P@bDAc :tere?t
In justifying the application of the e'ception on the basis of paramount public interest" the ponencia noted that the
M)*#*1 involved a significant part of the countryCs territory and wide#ranging political modifications for affected local
government units. It also claimed that the need for further legal enactments provides impetus for the %ourt to provide
controlling principles to guide the bench" the bar" the public and the government and its negotiating entity.
93.:
Knfortunately" the ponencia's justifications on these points practically stopped at these statements. Suprisingly" it did
not even have an analysis of what the paramount public interest is and what would best serve the common good under
the failed signing of the M)*#*1. We note" as a matter of judicial e'perience" that almost all cases involving
constitutional issues filed with this %ourt are claimed to be impressed with public interest. It is one thing" however" to
ma&e a claim and another thing to prove that indeed an interest is sufficiently public" ripe" and justiciable to claim the
attention and action of this %ourt. It must be considered" too" that while issues affecting the national territory and
sovereignty are sufficiently weighty to command immediate attention" answers and solutions to these types of
problems are not all lodged in the =udiciaryJ more than not" these answers and solutions involve matters of polic" that
essentially rest with the two other branches of government under our constitutional system"
935:
with the =udiciary being
called upon only where disputes and grave abuse of discretion arise in the course applying the terms of the
%onstitution and in implementing our laws.
9,-:
Where policy is involved" we are bound by our constitutional duties to
leave the Duestion for determination by those duly designated by the %onstitution # the ('ecutive" %ongress" or the
people in their sovereign capacity.
In the present case" the peace and order problems of Mindanao are essentially matters for the ('ecutive to address"
9,3:
with possible participation from %ongress and the sovereign people as higher levels of policy action arise. Its search
for solutions" in the course of several presidencies" has led the ('ecutive to the peace settlement process. *s has
been pointed out repetitively in the pleadings and the oral arguments" the latest move in the ('ecutiveCs Duest for
peace # the M)*#*1 # would have not been a good deal for the country if it had materiali;ed. 2his %ourt" however"
seasonably intervened and aborted the planned signing of the agreement. 2he *+ecuti$e# for its part# found it wise and
appropriate to full" heed the signals from our initial action and from the public outcr" the ,-.-.D generatedK it
backtracked at the earliest opportunit" in a manner consistent with its efforts to a$oid or minimize bloodshed while
preser$ing the peace process& *t the moment" the peace and order problem is still with the ('ecutive where the matter
should beJ the initiative still lies with that branch of government. 2he %ourtCs role" under the constitutional scheme that
we are sworn to uphold" is to allow the initiative to be where the %onstitution says it should be.
9,,:
We cannot and
should not interfere unless our action is una$oidabl" necessar" because the ('ecutive is acting beyond what is
allowable" or because it has failed to act in the way it should act" under the %onstitution and our laws.
91
My conclusion is in no small measure influenced by two basic considerations.
1irst" the failure to conclude the M)*#*1 as originally arranged by the parties has already resulted in bloodshed in
Mindanao" with blood being spilled on all sides" third party civilians included. Some of the spilled blood was not in
actual combat but in terror bombings that have been inflicted on the urban areas. 2o date" the bloodletting has showed
no signs of abating.
Lest we become confused in our own understanding of the issues" the problems confronting us may involve the socio#
economic and cultural plight of our Muslim and our indigenous brothers" but at core" they are peace and order
problems. 2hough others may disagree" I believe that socio#economic and cultural problems cannot fully be addressed
while peace and order are elusive. 8or can we introduce purely pacific solutions to these problems simply because we
are threatened with violence as an alternative. 6istor" teaches us that those who choose peace and who are willing to
sacrifice e$er"thing else for the sake of peace ultimatel" pa" a $er" high priceK the" also learn that there are times
when $iolence has to be embraced and frontall" met as the price for a lasting peace& 'his was the lesson of ,unich in
DB4I and one that we should not forget because we are still enjo"ing the peace di$idends the world earned when it
stood up to 6itler&
9,?:
In Mindanao" at the very least" the various solutions to our multi#faceted problems should come in
tandem with one another and :eHer o@t o; ;eCr o; t<reCte:eF HAoDe:ce.
0ather than complicate the issues further with judicial pronouncements that may have unforeseen or unforeseeable
effects on the present fighting and on the solutions already being applied" this %ourt should e'ercise restraint as the
fears immediately generated by a signed and concluded M)*#*1 have been addressed and essentially laid to rest.
2hus" rather than pro#actively act on areas that now are more e'ecutive than judicial" we should act with calibrated
restraint along the lines dictated by the constitutional delineation of powers. 1oing so cannot be eDuated to the failure
of this %ourt to act as its judicial duty reDuiresJ as I mentioned earlier" we have judicially addressed the concerns
posed with positive effects and we shall not hesitate to judicially act in the future" as may be necessary" to ensure that
the integrity of our constitutional and statutory rules and standards are not compromised. If we e'ercise restraint at all"
it is because the best interests of the nation and our need to show national solidarity at this point so reDuire" in order
that the branch of government in the best position to act can proceed to act.
Second# what remains to be done is to support the government as it pursues and nurses the peace process bac& to its
feet after the failed M)*#*1. 2his will again entail negotiation" not along the ,-.-.D lines as this recourse has been
tried and has failed" but along other approaches that will fully respect our %onstitution and e'isting laws" as had been
done in the 355< M8LF agreement. In this negotiation" the ('ecutive should be given the widest latitude in e'ploring
options and initiatives in dealing with the MILF" the Mindanao peace and order problem" and the plight of our Muslim
brothers in the long term. It should enjoy the full range of these options # from changes in our constitutional and
statutor" framework to full support in waging war# if and when necessar" # subject only to the observance of
constitutional and statutory limits. In a negotiation situation" the worse situation we can saddle the ('ecutive with is to
wittingly or unwittingly telegraph the ('ecutiveCs moves and our own wea&nesses to the MILF through our eagerness
to forestall constitutional violations. We can effectively move as we have shown in this M)*#*1 affair" but let this
move be at the proper time and while we ourselves observe the limitations the %onstitution commonly impose on all
branches of government in delineating their respective roles.
H. T<e NeeF ;or G@AFeDA:e? ;roE t<A? Co@rt
2he cases of Da$id $& ,acapagal-.rro"o" Sanlakas $& *+ecuti$e Secretar"# and 0acson $& Perez presented a novel
issue that uncovered a gray area in our %onstitutionB in the absence of a specific constitutional provision" does the
President have the power to declare a state of rebellionInational emergencyN If the answer is in the affirmative" what
are the conseDuences of this declarationN
Da$id $& ,acapagal-.rro"o answered these Duestions and went on to further clarify that a declaration of a state of
national emergency did not necessarily authori;e the President to e'ercise emergency powers such as the power to
ta&e over private enterprises under Section 3>" *rticle OII of the %onstitution. Prior to this case" the correlation
92
between Section 3>" *rticle OII and the emergency powers of the President under Section ,? ,!" *rticle EI has never
been considered.
In contrast" the present petitions and the intervening developments do not now present similar Duestions that
necessitate clarification. Since the M)*#*1 does not e'ist as a legal" effective" and enforceable instrument" it can
neither be illegal nor unconstitutional. For this reason" I have not bothered to refute the statements and arguments
about its unconstitutionality. I li&ewise see no reason to wade into the realm of international law regarding the concerns
of some of my colleagues in this area of law.
Knless signed and duly e'ecuted" the M)*#*1 can only serve as unilateral notes or a @wish list@ as some have ta&en
to calling it. If it will serve any purpose at all" it can at most serve as an indicator of how the internal processes
involving the peace negotiations are managed at the )ffice of the President. Aut these are matters internal to that
)ffice so that this %ourt cannot interfere" not even to ma&e suggestions on how procedural mista&es made in arriving
at the aborted M)*#*1 should be corrected.
2o be sure" for this %ourt to issue guidelines relating to unapplied constitutional provisions would be a useless e'ercise
worse than the @defanging of paper tigers@ that Mr. =ustice 1ante ). 2inga abhorred in Da$id $& ,acapagal-.rro"o.
9,6:

In terms of the results of this e'ercise" the words of former %hief =ustice *rtemio Panganiban in Sanlakas $& *+ecuti$e
Secretar" are most apt # @nothing is gained by breathing life into a dead issue.@
9,+:

HA. T<e JCC=CbDe o; Re=etAtAo: b@t
EHCFA:G ReHAe>J E9ce=tAo:
2he best e'ample of the @capable of repetition yet evading review@ e'ception to mootness is in its application in Roe $&
<ade#
*+,-
the K.S. case where the *merican Supreme %ourt categorically ruled on the legal limits of abortion. /iven
that a fetus has a gestation period of only nine months" the case could not have wor&ed its way through the judicial
channels all the way up to the KS Supreme %ourt without the disputed pregnancy being ended by the babyCs birth.
1espite the birth and the patent mootness of the case" the K.S. Supreme %ourt opted to fully confront the abortion
issue because it was a situation clearly capable of repetition but evading review # the issue would recur and would
never stand effective review if the nine#month gestation period would be the %ourtCs only window for action.
In the Philippines" we have applied the @capable of repetition but evading review@ e'ception to at least two recent
cases where the ('ecutive similarly bac&trac&ed on the course of action it had initially ta&en.
2he earlier of these two cases # Sanlakas $& *+ecuti$e Secretar"
9,>:
# involved the failed )a&wood mutiny of =uly ,>"
,--?. 2he President issued Proclamation 8o. 6,> and /eneral )rder 8o. 6 declaring a @state of rebellion@ and calling
out the armed forces to suppress the rebellion. 2he President lifted the declaration on *ugust 3" ,--? through
Proclamation 8o. 6?+. 1espite the lifting" the %ourt too& cogni;ance of the petitions filed based on the e'perience of
May 3" ,--3 when a similar @state of rebellion@ had been imposed and lifted and where the %ourt dismissed the
petitions filed for their mootness.
9,.:
2he %ourt used the @capable of repetition but evading review@ e'ception @to prevent
similar Duestions from re#emerging ... and to lay to rest the validity of the declaration of a state of rebellion in the
e'ercise of the PresidentCs calling out power" the mootness of the petitions notwithstanding.@
2he second case preeminently cited in the present ponencia! is Da$id $& ,acapagal-.rro"o. 2he root of this case was
Proclamation 8o. 3-3> and /eneral )rder 8o. + that the President issued in response to the conspiracy among
military officers" leftist insurgents of the 8ew PeopleCs *rmy" and members of the political opposition to oust or
assassinate her on or about February ,6" ,--<. )n March ?" ,--<" e'actly one wee& after the declaration of a state of
emergency" the President lifted the declaration. In ta&ing cogni;ance of the petitions" the %ourt justified its move by
simply stating that @the respondentsC contested actions are capable of repetition.@
1espite the lac& of e'tended e'planation in Da$id $& ,acapagal-.rro"o" the %ourtCs actions in both cases are
essentially correct because of the history of @emergencies@ that had attended the administration of President
Macapagal#*rroyo since she assumed office. 2hus" by the time of Da$id $& ,acapagal-.rro"o" the %ourtCs basis and
93
course of action in these types of cases had already been clearly laid.
'his kind of histor" or track record is# unfortunatel"# not present in the petitions at bar and no effort was e$er e+erted
b" the ponencia to e+plain wh" the e+ception should appl". (ffectively" the ponencia simply te'tually lifted the
e'ception from past authorities and superimposed it on the present case without loo&ing at the factual milieu and
surrounding circumstances. 2hus" it simply assumed that the ('ecutive and the ne't negotiating panel" or any panel
that may be convened later" will merely duplicate the wor& of the respondent peace panel.
2his assumption is" in my view" purely hypothetical and has no basis in fact in the way Da$id $& ,acapagal-.rro"o had"
or in the way the e'ception to mootness was justified in Roe $& <ade. *s I have earlier discussed"
9,5:
the ponencia's
conclusion made on the basis of the /0P#MILF Peace *greement of =une ,--3 is mista&en for having been based on
the wrong premises. *dditionally" the pronouncements of the ('ecutive on the conduct of the /0P negotiating panel
and the parameters of its actions are completely contrary to what the ponencia assumed.
('ecutive )rder 8o. ? entitled Defining Polic" and .dministrati$e Structure for /o$ernment's 5omprehensi$e Peace
*fforts! sets out the governmentCs visions and the structure by which peace shall be pursued. 2hus" its Section ,
states 2he Systematic *pproach to peaceJ Section ?" 2he 2hree Principles of the %omprehensive Peace ProcessJ
Section 6" 2he Si' Paths to PeaceJ and Section +c!the /overnment Peace 8egotiating Panels.
9?-:
2he Memorandum
of Instructions from the President dated March ,--3 to the /overnment 8egotiating Panel" states among others thatB
3. 2he negotiations shall be conducted in accordance with the mandates of the Philippine %onstitution" the 0ule
of Law" and the principles of the sovereignty and territorial integrity of the 0epublic of the Philippines.
,. 2he negotiation process shall be pursued in line with the national %omprehensive Peace Process" and shall
see& a principled and peaceful resolution of the armed conflict" with neither blame nor surrender" but with
dignity for all concerned.
' ' '
6. 2he general approach to the negotiations shall include the followingB
a. See&ing a middle ground between the aspirations of the MILF and the political" social and
economic objectives of the Philippine /overnmentJ
b. %oordinated 2hird Party Facilitation" where neededJ
c. %onsultations with affected communities and sectors.
9?3:
Knder these clear terms showing the ('ecutiveCs vision on how the peace process and the negotiations shall proceed"
I believe that it is fallacious to assume that any renewed negotiation with the MILF will entail a repetition of the
discarded M)*#*1. Knderstandably" it may be as&ed why the M)*#*1 turned out the way it did despite the
negotiating panelCs clear marching orders. 2he e'act answer was never clarified during the oral arguments and I can
only speculate that at some point" the negotiating panel lost its bearings and deviated from the clear orders that are
still in force up to the present time. *s I mentioned earlier"
9?,:
this may be the reason why the negotiating panel was
immediately dissolved. What is important though" for purposes of this case and of the peace and order situation in
Mindanao" is that the same marching orders from the ('ecutive are in place so that there is no misunderstanding as to
what that branch of government see&s to accomplish and how it intends this to be done.
2he fact that an issue may arise in the future # a distinct possibility for the ponencia # unfortunately does not authori;e
this %ourt to render a purely advisory opinion" i&e&" one where a determination by this %ourt will not have any effect in
the @real world@. * courtCs decision should not be any broader than is reDuired by the precise facts. *nything remotely
resembling an advisory opinion or a gratuitous judicial utterance respecting the meaning of the %onstitution must
altogether be avoided.
9??:
*t best" the present petitions may be considered to be for declaratory relief" but that remedy
regrettably is not within this %ourtCs original jurisdiction" as I have pointed out earlier.
9?6:
94
Finally" let me clarify that the li&elihood that a matter will be repeated does not mean that there will be no meaningful
opportunity for judicial review
9?+:
so that an e'ception to mootness should be recogni;ed. For a case to dodge dismissal
for mootness under the @capable of repetition yet evading review@ e'ception" two reDuisites must be satisfiedB 3! the
duration of the challenged action must be too short to be fully litigated prior to its cessation or e'pirationJ and ,! there
must be reasonable e'pectation that the same complaining party will be subjected to the same action again.
9?<:
2he time constraint that justified Roe $& <ade# to be sure" does not inherently e'ist under the circumstances of the
present petition so that judicial review will be evaded in a future litigation. *s this %ourt has shown in this case" we can
respond as fast as the circumstances reDuire. I see nothing that would bar us from ma&ing a concrete ruling in the
future should the e'ercise of our judicial power" particularly the e'ercise of the power of judicial review" be justified.
HAA. T<e RAG<t to :;orECtAo:
2he petitions for mandamus essentially involved the demand for a copy of the M)*#*1 based on the petitionersC right
to information under Section >" *rticle III of the 35.> %onstitution. In light of the commonly#held view that the
mandamus aspect of the petitions is now moot" focus now shifts to the right to consultation an aspect of the
constitutional right to information and as guaranteed under the Indigenous PeopleCs 0ights *ct
9?>:
and the Local
/overnment %ode!
9?.:
that the petitioners now capitali;e on to secure the declaration of the nullity of the M)*#*1.
I note in this regard though that it is not so much the lac& of consultations that the petitioners are rallying against" but
the possibility under the M)*#*1Cs terms that they may be deprived of their lands and properties without due process
of law i&e&# that the lumadsC ancestral domains will be included in and covered by the Aangsamoro =uridical (ntity
9()*: without the benefit of prior consultations!.
9?5:
2hus" the eDuation they present to this %ourt isB lac& of consultations
[ deprivation of property without due process of law.
2he short and Duic& answer to this proprietary concern is that the petitionersC claim is premature. With the M)*#*1
unsigned" their fears need not materiali;e. Aut even with a signed M)*#*1" I do not believe that the immediate
deprivation they fear and their due process concerns are valid based alone on the terms of this aborted agreement.
Knder these terms" the M)*#*1Cs e'ecution and signing are but parts of a series of acts and agreementsJ its signing
was not be the final act that would render its provisions operative. 2he M)*#*1 itself e'pressly provides that the
mechanisms and modalities for its implementation will still have to be spelled out in a %omprehensive %ompact and
will reDuire amendments to the e'isting legal framewor&. 2his amendatory process" under the %onstitution" reDuires
that both %ongress and the people in their sovereign capacity be heard. 2hus" the petitioners could still fully ventilate
their views and be heard even if the M)*#*1 had been signed.
It is in the above sense that I doubt if the ponencia's cited case # 5ha$ez $& P*.
96-:
# can serve as an effective authority
for the ponencia's thesisB that the process of negotiations as well as the terms of the M)*#*1 should have been fully
disclosed pursuant to the peopleCs right to information under Section >" *rticle III and the governmentCs duty to disclose
under Section ,." *rticle II of the %onstitution. 2he 5ha$ez case dealt with a commercial contract that was perfected
upon its signingJ disclosure of information pertaining to the negotiations was therefore necessary as an objection after
the signing would have been too late. *s outlined above" this feature of a commercial contract does not obtain in the
M)*#*1 because subseDuent acts have to ta&e place before the points it covers can ta&e effect. Aut more than this"
the contract involved in 5ha$e; and the purely commercial and proprietary interests it represents cannot simply be
compared with the M)*#*1 and the concerns it touched upon # recognition of a new juridical entity heretofore
un&nown in Philippine law" its impact on national sovereignty" and its effects on national territory and resources. If only
for these reasons" I have to reject the ponencia's conclusions touching on the right to information and consultations.
My more basic disagreement with the ponencia's treatment of the right to information and the duty of disclosure is its
seeming readiness to treat these rights as stand#alone rights that are fully e'ecutory subject only to the safeguards
that %ongress may by law interpose.
In the first place" it was not clear at all from the ponencia's cited constitutional deliberations that the framers intended
95
the duty of disclosure to be immediately e'ecutory. 2he cited deliberation recitesB
M0. 1*EI1(B I would to get some clarifications on this. Mr. Presiding )fficer" did I get the /entleman correctly as
having said that this is not a self#e'ecutory provisionN It would reDuire a legislation by %ongress to implementN
M0. )PL(B $es. )riginally" it was going to be self#e'ecuting" but I accepted an amendment from %ommissioner
0egalado" so that the safeguards on national interests are modified by the clause @as may be provided by law.@
M0. 1*EI1(B Aut as worded" does it not mean that this will immediately ta&e effect and %ongress may provide for
reasonable safeguards on the sole ground of national interestN
M0. )PL(B $es. I thin& so" Mr. Presiding )fficer" I said earlier that it should immediately influence the climate of the
conduct of public affairs but" of course" %ongress here may no longer pass a law revo&ing it" or if this is approved"
revo&ing this principle" which is inconsistent with this policy.
963:
In my reading" while Mr. 1avide was sure of the thrust of his Duestion" Mr. )ple was eDuivocal about his answer. In
fact" what he actually said was that his original intention was for the provision to be self#e'ecuting" but Mr. 0egalado
introduced an amendment. 7is retort to Mr. 1avideCs direct Duestion was a cryptic one and far from the usual )ple
reply # that the right should immediately influence the climate of public affairs" and that %ongress can no longer revo&e
it.
Mr. )pleCs thin&ing may perhaps be better understood if the e'changes in another deliberation # on the issue of
whether disclosure should e'tend to the negotiations leading to the consummation of a state transaction # is
considered. 2he following e'changes too& placeB
M0. SK*0(HB *nd when we say MtransactionsC which should be distinguished from contracts" agreements" or treaties
or whatever" does the /entleman refer to the steps leading to the consummation of the contract" or does he refer to
the contract itselfN
M0. )PL(B 2he MtransactionsC used here" I suppose is generic and therefore" it can cover both steps leading to a
contract and already a consummated contract" Mr. Presiding )fficer.
M0. SK*0(HB 2his contemplates inclusion of negotiations leading to the consummation of the transaction.
M0. )PL(B 2es# sub.ect only to reasonable safeguards on the national interest.
96,:
2hus" even if Mr. )ple did indeed mean that the constitutional provisions on the right to information and the duty of
disclosure may immediately be effective" these provisions have to recogni;e" other than those e'pressly provided by
%ongress" @reasonable safeguards on the national interest.@ In constitutional law" this can only refer to safeguards
inherent from the nature of the state transaction" the state interests involved" and the power that the state may bring to
bear" specifically" its police power. Eiewed in this light" the duty to disclose the various aspects of the M)*#*1 should
not be as simplistic as the ponencia claims it to be as this subject again opens up issues this %ourt has only began to
deal with in the 8eri petition
96?:
and the =P(P* controversy.
966:
)f course" this is not the time nor the case for a full
e'amination of the constitutional right to information and the governmentCs duty to disclose since the constitutionality of
the M)*#*1 is a dead issue.
*s my last point on a dead issue" I believe that the ponencia did not distinguish in its discussion between the
disclosure of information with respect to the peace process in general and the ,-.-.D negotiation in particular. I do
not believe that these two matters can be interchanged and discussed from the prisms of information and disclosure as
if they were one and the same. 2he peace process as embodied in (.). 8o. ? relates to the wider government effort to
secure peace in Mindanao through various offices and initiatives under the )ffice of the President interacting with
various public and private entities at different levels in Mindanao. 2he peace negotiation itself is only a part of the
overall peace process with specifically named officials underta&ing this activity. 2hus" the consultations for this general
peace process are necessarily wider than the consultations attendant to the negotiations proper that has been
delegated to the /0P 8egotiating Panel. 2he dynamics and depth of consultations and disclosure with respect to
these processes should" of course" also be different considering their inherently varied natures. 2his confusion" I
believe" renders the validity of the ponencia's discussions about the violation of the right to information and the
96
governmentCs duty of disclosure highly doubtful.
Co:cD@?Ao:
2he foregoing reasons negate the e'istence of grave abuse of discretion that justifies the grant of a writ of prohibition. I
therefore vote to "&*&& the consolidated petitions.
93:
0espondentsC %ompliance dated *ugust >" ,--..
9,:
/.0. 3>3?5<" May ?" ,--<" 6.5 S%0* 3<3.
9?:
%iting (atangas $& Romulo" 6,5 S%0* >?< ,--6!.
96:
%iting 0acson $& Perez" ?+> S%0* >+< ,--3!.
9+:
%iting Pro$ince of (atangas" supra note ?.
9<:
%iting .lbana $& 5omelec" 6?+ S%0* 5. ,--6!J .cop $& /uingona" ?.? S%0* +>> ,--,!J Sanlakas $& *+ecuti$e
Secretar"" 6,3 S%0* <+< ,--6!.
9>:
Ponencia# p. ?,.
9.:
Supra note ," p. ,36
95:
2he cause of action in the present petition filed by the %ity of Iligan in /.0. 8o. 3.?.5?.
93-:
SeeB Delumen $& Republic" 56 Phil. ,.> 35+6!J .llied (roadcasting 5enter# Inc& $& Republic" /.0. 8o. 53+--"
)ctober 3." 355-" 35- S%0* >.,J ,angahas $& 6on& )udge Paredes" /.0. 8o. 3+>.<<S\ February 36" ,-->" +3+
S%0* >-5.
933:
%)8S2I2K2I)8" *rticle EIII" Section 6,!.
93,:
2he 35.> %onstitution of the 0epublic of the Philippines" . 5ommentar" ,--? ed.!" p. 5?..
93?:
0is mota means the cause of the suit or action" 6 %ampb.J ,olde+ Realt"# Inc& $& 603R(" /.0. 8o. 365>35" =une
,3" ,--" +,+ S%0* 35..
936:
0espondentsC %ompliance dated September 3" ,--. citing the ('ecutive SecretaryCs Memorandum dated *ugust
,." ,--..
93+:
0espondentsC Manifestation dated September 6" ,--. citing the ('ecutive SecretaryCs Memorandum dated
September ?" ,--..
93<:
Whose full title is %.greement on Peace between the /o$ernment of the Republic of the Philippines and the ,oro
Islamic 0iberation 1ront&%
93>:
SeeB (ado" $& 1errer" /.0. 8o. L#?,+6<" )ctober 3>" 35>-" ?+ S%0* ,.+J =ilosba"an $& /arcia" /.0. 8o. 33??>+"
May +" 3556" ,?, S%0* 33-.
93.:
Ponencia" p. ??.
935:
SeeB 0a (ugal-('laan 'ribal .ssociation# Inc& $& Ramos" /.0. 8o. 3,>..," 1ecember 3" ,--6" 66+ S%0* 3J
97
.bakada /uro Part" 0ist $& *rmita" /.0. 8o. 3<.-+<" September 3" ,--+" 6<5 S%0* 3.
9,-:
!6. $& Re"es" /.0. 8o. L#656?5" =une ,5" 35.?" 3,? S%0* ,6+.
9,3:
%)8S2I2K2I)8" *rticle EII" Sections 3 and 3..
9,,:
SeeB 1ari78as $& *+ecuti$e Secretar"" /.0. 8o. 36>?.>" 1ecember 3-" ,--?" 63> S%0* +-?.
9,?:
In 35?." Prime Minister 8eville %hamberlain triumphantly returned to London from a peace agreement with *dolf
7itler in Munich" /ermany. 2he Prime Minister then triumphantly announced that that he has been assured J=eCce ;or
o@r tAEe.J 7itler started the Second World War on September 3" 35?5.
9,6:
Supra" note ," p. ,.,#,.?.
9,+:
/.0. 3+5-.+" February ?" ,--6" 6,3 S%0* <+<" <.,.
9,<:
63- K.S. 33? 35>?!.
9,>:
Supra note ,6" p. <<+.
9,.:
0acson $& Perez" /.0. 8o. 36>>.-" May 3-" ,--3" ?+> S%0* >+>.
9,5:
SeeB pp. < # > of this %oncurring and 1issenting )pinion.
9?-:
&ectAo: 2. "he Systematic Approach to &eace. 2he government shall continue to pursue a comprehensive"
integrated and holistic approach to peace that is guided by the principles and processes laid down in this ('ecutive
)rder. 2hese shall provide the framewor& for the implementation" coordination" monitoring and integration of all
government peace initiatives" and guide its partnership with civil society in the pursuit of a just and enduring peace.
&ectAo: 3. "he "hree &rinciples of the #omprehensive &eace &rocess. 2he comprehensive peace process shall
continue to be governed by the following underlying principlesB
a. * comprehensive peace process should be community#based" reflecting the sentiments" values and
principles important to all Filipinos. 2hus" it shall be defined not by the government alone" nor by the different
contending groups only" but by all Filipinos as one community.
b. * comprehensive peace process aims to forge a new social compact for a just" eDuitable" humane and
pluralistic society. It see&s to establish a genuinely pluralistic society" where all individuals and groups are
free to engage in peaceful competition for predominance of their political programs without fear" through the
e'ercise of rights and liberties guaranteed by the %onstitution" and where they may compete for political
power through an electoral system that is free" fair and honest.
c. * comprehensive peace process see&s a principled and peaceful resolution to the internal armed conflicts"
with neither blame nor surrender" but with dignity for all concerned.
&ectAo: 4. "he Six &aths to &eace. 2he components of the comprehensive peace process comprise the processes
&nown as the @Paths to Peace@. 2hese components processes are interrelated and not mutually e'clusive" and must
therefore be pursued simultaneously in a coordinated and integrated fashion. 2hey shall include" but may not be
limited to" the followingB
3. PK0SKI2 )F S)%I*L" (%)8)MI% *81 P)LI2I%*L 0(F)0MS. 2his component involves the vigorous
implementation of various policies" reforms" programs and projects aimed at addressing the root causes of
internal armed conflicts and social unrest. 2his may reDuire administrative action" new legislation" or even
constitutional amendments.
,. %)8S(8SKS#AKIL1I8/ *81 (MP)W(0M(82 F)0 P(*%(. 2his component includes continuing
98
consultations on both national and local levels to build consensus for a peace agenda and process" and the
mobili;ation and facilitation of peopleCs participation in the peace process.
?. P(*%(FKL" 8(/)2I*2(1 S(22L(M(82 WI27 27( 1IFF(0(82 0(A(L /0)KPS. 2his component
involves the conduct of face#to#face negotiations to reach peaceful settlement with the different rebel groups.
It also involves the effective implementation of peace agreements.
6. P0)/0*MS F)0 0(%)8%ILI*2I)8" 0(I82(/0*2I)8 I82) M*I8S20(*M S)%I(2$ *81
0(7*AILI2*2I)8. 2his component includes programs to address the legal status and security of former
rebels" as well as community#based assistance programs to address the economic" social and psychological
rehabilitation needs of former rebels" demobili;ed combatants and civilian victims of the internal armed
conflicts.
+. *110(SSI8/ %)8%(08S *0ISI8/ F0)M %)82I8KI8/ *0M(1 7)S2ILI2I(S.
2his component involves the strict implementation of laws and policy guidelines" and the institution of
programs to ensure the protection of non#combatants and reduce the impact of the armed conflict on
communities found in conflict areas.
<. AKIL1I8/ *81 8K02K0I8/ * %LIM*2( %)81K%IE( 2) P(*%(.
2his component includes peace advocacy and peace education programs" and the implementation of various
confidence#building measures.
&ectAo: 5. Administrative Structure. 2he *dministrative Structure for carrying
out the comprehensive peace process shall be as followsB
%. /)E(08M(82 P(*%( 8(/)2I*2I8/ P*8(LS. 2here shall be established /overnment Peace 8egotiating
Panels /P8Ps! for negotiations with different rebel groups" to be composed of a %hairman and four 6! members who
shall be appointed by the President as her official emissaries to conduct negotiations" dialogues" and face#to#face
discussions with rebel groups.
2hey shall report to the President" through the P*PP" on the conduct and progress of their negotiations. 2he /P8Ps
shall each be provided technical support by a Panel Secretariat under the direct control and supervision of the
respective Panel %hairman. 2hey shall be authori;ed to hire consultants and to organi;e their own 2echnical
%ommittees to assist in the technical reDuirements for the negotiations.
Kpon conclusion of a final peace agreement with any of the rebel groups" the concerned /P8P shall be dissolved. Its
Panel Secretariat shall be retained in the )ffice of the Presidential *dviser on the Peace Process )P*PP! for the
purpose of providing support for the monitoring of the implementation of the peace agreement.
9?3:
President *rroyoCs Memorandum of Instructions dated March 3" ,--3J Paragraph 3 above" was reiterated in the
PresidentCs Memorandum of Instruction dated September ." ,--?.
9?,:
See p. < of this %oncurring and 1issenting )pinion.
9??:
Ean *lstyne" W." )udicial .cti$ism and )udicial Restraint. httpBIInovelguide.comIaIdiscoverIeamc]-?I
eamc]-?]-3?>5.html" last visited )ctober 3," ,--..
9?6:
See p. ? of this %oncurring and 1issenting )pinion.
9?+:
State of !orth Dakota $& 6ansen" ,--< 81 3?5.
9?<:
6ain $& ,ullin" ?,> F.?d 33>>" 33.- 3-
th
%ir. ,--?! citing 3nited States $& Seminole !ation" ?,> F.?r 5?5 3-
th
%ir.
,--,.
99
9?>:
0.*. .?>3.
9?.:
0.*. >3<-.
9?5:
Petition filed by the Province of 8orth %otabato in /.0. 8o. 3.<+53" p. ,6#,+J Memorandum filed the Province of
8orth %otabato" p. >3.
96-:
/.0. 8o. 3??,+-" =uly 5" ,--," ?.6 S%0* 3+,.
963:
%ited at p. 6- of the PonenciaJ 0ecord of the %onstitutional %ommission" Eol. E" pp. ,.#,5.
96,:
0ecord of the %onstitutional %ommission" Eol. E" pp. ,6 #,+.
96?:
!eri $& Senate 5ommittee# /.0. 8o. 3.-<6?" March ,+" ,--..
966:
.kba"an $& .quino# /.0. 8o. 3>-+3<" =uly 3<" ,--..
&EPARATE OPNON
A2C#NA, $.%
I agree with the ponencia but I hold the view that" had the M)*#*1 been signed as planned" it would have provided a
basis for a claim in an international court that the Philippines was bound by its terms at the very least as a unilateral
declaration made before representatives of the international community with vital interests in the region.
Whether the case of .ustralia $& 1rance
93:
or that of (urkina 1aso $& ,ali#
9,:
is the one applicable" is not solely for this
%ourt to decide but also for the international court where the Philippines could be sued. While we may agree that the
Philippines should not be considered bound" the international court may rule otherwise. 2here is need to consult the
people before ris&ing that &ind of outcome.
)n this point" Martin 1i'on and 0obert Mc%orDuodale" in their CC?e? C:F *CterACD? o: :ter:CtAo:CD $C>" observeB
B. #:ADCterCD ?tCteEe:t?
!uclear 'est 5ases :.ustralia $& 1rance and !ew >ealand $& 1rance;
Merits
I%= 0ep. 35>6 ,+?" International %ourt of =ustice
*ustralia and 8ew Healand brought proceedings against France arising from nuclear tests conducted by France in the
South Pacific. Aefore the %ourt had an opportunity to hear in full the merits of the case" statements were made by
French authorities indicating that France would no longer conduct atmospheric nuclear tests. 2he court held by nine
votes to si' that" due to these statements by France" the claim of *ustralia and 8ew Healand no longer had any object
and so the %ourt did not have to decide the issues in the case.
It is well recogni;ed that declarations made by way of unilateral acts" concerning legal or factual situations" may have
the effect of creating legal obligations. 1eclarations of this &ind may be" and often are" very specific. When it is the
intention of the State ma&ing the declaration that it should become bound according to its terms" that intention confers
on the declaration the character of a legal underta&ing" the State being thenceforth legally reDuired to follow a course
of conduct consistent with the declaration. *n underta&ing of this &ind" if given publicly" and with an intent to be bound"
even though not made within the conte't of international negotiations" is binding. In these circumstances" nothing in
the nature of a quid pro quo nor any subseDuent acceptance of the declaration" not even any reply or reaction from
other States" is reDuired for the declaration to ta&e effect" since such a reDuirement would be inconsistent with the
100
strictly unilateral nature of the juridical act by which the pronouncement by the State was made....
' ' '
8)2(SB
3. It is very rare that a %ourt will find that a unilateral statement will bind a State. In 1rontier Dispute 5ase :(urkina
1aso $& ,ali; 35.< I%= 0ep ++6" a %hamber of the International %ourt of =ustice held that a statement by the President
of Mali at a press conference did not create legal obligations on Mali" especially as M2he %hamber considers that it has
a duty to show even greater caution when it is a Duestion of a unilateral declaration not directed to any particular
recipient.C para. ?5!.
9?:
Finally" precedents are not strictly followed in international law" so that an international court may end up formulating a
new rule out of the factual situation of our M)*#*1" ma&ing a unilateral declaration binding under a new type of
situation" where" for instance" the other party is not able to sign a treaty as it is not yet a State" but the declaration is
made to a @particular recipient@ and @witnessed@ by a host of sovereign States.
*s to the rest" I concur.
93:
35>6 I.%.=. ,+?.
9,:
35.< I.%.=. ++6.
9?:
Pp. +5#<3" emphasis supplied.
&EPARATE OPNON
TA:GC, $.8
*s a matter of law" the petitions were mooted by the uneDuivocal decision of the /overnment of the Philippines"
through the President" not to sign the challenged Memorandum of *greement on *ncestral 1omain M)*#*1!. 2he
correct course of action for the %ourt is to dismiss the petitions. 2he essential relief sought by the petitioners#a writ of
prohibition under 0ule <+#has already materiali;ed with the Philippine governmentCs voluntary yet uneDuivocal
desistance from signing the M)*#*1" thereby depriving the %ourt of a live case or controversy to e'ercise jurisdiction
upon.
*t the same time" I deem it impolitic to simply vote for the dismissal the cases at bar without further discourse in view
of their uniDueness in two aspects. *t the center is an agreement and yet a party to it was not impleaded before it was
forsa&en. *nd while the unimpleaded party is neither a state nor an international legal person" the cases are laden with
international law underpinnings or analogies which it may capitali;e on to stir adverse epiphenomenal conseDuences.
*ccording to news reports" the Moro Islamic Liberation Front MILF! has adopted the posture that as far as it is
concerned" the M)*#*1 is already effective" and there may be indeed a tenuous lin&age between that stance and the
apparent fact that the M)*#*1" though unsigned" bears the initials of members of the Philippine negotiating panel" the
MILF negotiating panel and the peace negotiator of the Malaysian government. 2hese concerns warrant an e'tended
discussion on the M)*#*1" even if the present petitions are moot and academic.
I&
It is a bulwar& principle in constitutional law that an essential reDuisite for a valid judicial inDuiry is the e'istence of an
101
actual case or controversy. * justiciable controversy must be definite and concrete" touching the legal relations of
parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through
a decree that is conclusive in character" as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.
93:
2he e'ercise of the power of judicial review depends upon the e'istence of a case or
controversy. %onseDuently" if a case ceases to be a lively controversy" there is no justification for the e'ercise of the
power" otherwise" the court would be rendering an advisory opinion should it do so.
9,:
We held in /ancho-on $& Secretar" of 0aborB
9?:
It is a rule of universal application" almost" that courts of justice constituted to pass upon substantial rights will not
consider Duestions in which no actual interests are involvedJ they decline jurisdiction of moot cases. *nd where the
issue has become moot and academic" there is no justiciable controversy" so that a declaration thereon would be of no
practical use or value.2here is no actual substantial relief to which petitioners would be entitled and which would be
negated by the dismissal of the petition.
In the recent ruling in Suplico $& !*D."
96:
the President officially desisted from pursuing a national government project
which was challenged before this %ourt. 2he %ourt was impelled to ta&e mandatory judicial notice
9+:
of the PresidentCs
act" and conseDuently declare the pending petitions as moot and academic. 2he %ourt" through =ustice 0eyes" heldB
%oncomitant to its fundamental tas& as the ultimate citadel of justice and legitimacy is the judiciaryCs role of
strengthening political stability indispensable to progress and national development.Pontificating on issues which no
longer legitimately constitute an actual case or controversy will do more harm than good to the nation as a whole.Wise
e'ercise of judicial discretion militates against resolving the academic issues" as petitioners want this %ourt to do.2his
is especially true where" as will be further discussed" the legal issues raised cannot be resolved without previously
establishing the factual basis or antecedents.
=udicial power presupposes actual controversies" the very antithesisof mootness.In the absence of actual justiciable
controversies or disputes" the %ourt generally opts to refrain from deciding moot issues.Where there is no more live
subject of controversy" the %ourt ceases to have a reason to render any ruling or ma&e any pronouncement.
/apag wala nang buhay na 0aso, wala nang dahilan para magdesisyon ang 1usgado.
9<:
2he live controversy relied upon by the petitions was the looming accession by the Philippine government to the M)*#
*1" through a formal signing ceremony that was to be held at 4uala Lumpur" Malaysia" on + *ugust ,--.. 2his
ceremony was prevented when the %ourt issued a 2emporary 0estraining )rder on 6 *ugust ,--." yet even after the
20)" it appeared that the /overnment then was still inclined to sign the M)*#*1 after the legal obstacles had been
cleared. 7owever" on 3 September ,--." the /overnment through the )ffice of the Solicitor /eneral" filed a
%ompliance" manifesting the pronouncement of ('ecutive Secretary (rmita that @9n:o matter what the Supreme %ourt
ultimately decides9": the government will not sign the M)*.@ 2his declared intent was repeated in a Manifestation dated
6 September ,--." and verbally reiterated during the oral arguments before this %ourt.
In addition" the President herself publicly declared" as recently as on , )ctober ,--." that regardless of the ruling of
the Supreme %ourt on these petitions" her government will not sign the M)*#*1" @in the light of the recent violent
incidents committed by MILF lawless groups.@
9>:
%learly following Suplico the %ourt has no choice but to ta&e
mandatory judicial notice of the fact that the /overnment will not sign or accede to the M)*#*1 and on this basis
dismiss to the petitions herein.
2hus" the %ourt is left with petitions that see& to enjoin the /overnment from performing an act which the latter had
already avowed not to do. 2here is no longer a live case or controversy over which this %ourt has jurisdiction.
Whatever live case there may have been at the time the petitions were filed have since become e'tinct.
*dmittedly" there are e'ceptions to the moot and academic principle. 2he fact that these e'ceptions are oft#discussed
and applied in our body of jurisprudence reflects an unbalanced impression" for most petitions which are rendered
moot and academic are usually dismissed by way of unsigned or minute resolutions which are not published in the
Philippine 0eports or the Supreme %ourt 0eports *nnotated. Still" the moot and academic principle remains a highly
useful and often applied tool for the %ourt to weed out cases barren of any current dispute. Indeed" even with those
e'ceptions in place" there is no mandatory rule that would compel this %ourt to e'ercise jurisdiction over cases which
102
have become academic. For the e'ceptions to apply" it would be necessary" at bare minimum" to e'hibit some
practical utilitarian value in granting the writs of prohibition sought. )therwise" the words of the %ourt would be an
empty e'ercise of rhetoric that may please some ears" but would not have any meaningful legal value.
* usual e'ception to the moot and academic principle is where the case is capable of repetition yet evading review. *
recent e'ample where the %ourt applied that e'ception was in Sanlakas $& *+ecuti$e Secretar""
9.:
which involved the
power of the President to declare a state of rebellion. 2herein" the %ourt decided to e'ercise jurisdiction @9t:o prevent
similar Duestions from re#emerging.@
95:
It was clear in Sanlakas that the challenged act" the declaration by the President
of a state of rebellion was a unilateral act that was clearly capable of repetition" it having actually been accomplished
twice before.
%ontrast that situation to this case" where the challenged act is not a unilateral act that can be reproduced with ease
by one person or interest group alone. 2o repeat the challenged act herein" there would have to be a prolonged and
delicate negotiation process between the /overnment and the MILF" both sides being influenced by a myriad of
un&nown and inconstant factors such as the current headlines of the day. %onsidering the diplomatic niceties involved
in the adoption of the M)*#*1" it is well#worth considering the following discussion on the comple'ity in arriving at
such an agreementB
2he ma&ing of an international agreement is not a simple single act. It is rather a comple' process" reDuiring
performance of a variety of different functions or tas&s by the officials of a participating state.
*mong the functions which must be distinguished for even minimal clarity are the followingB 3! the formulation of
rational policies to guide the conduct of negotiations with other statesJ ,! the conduct of negotiations with the
representatives of other statesJ ?! the approval of an agreement for internal application within the state" when such
internal application is contemplatedJ 6! the approval of an agreement for the e'ternal commitment of the stateJ +! the
final utterance of the agreement as the e'ternal commitment of the state to other states.
93-:
*ssuming that the act can be repeated at all" it cannot be repeated with any ease" there being too many coo&s stirring
the broth. *nd further assuming that the two sides aree able to negotiate a new M)*#*1" it is highly improbable that it
would contain e'actly the same provisions or legal framewor& as the discarded M)*#*1.
II&
(ven though the dismissal of these moot and academic petitions is in order in my view" there are nonetheless special
considerations that warrant further comment on the M)*#*1 on my part.
*s intimated earlier" the MILF has adopted the public position that as far as it is concerned" the M)*#*1 has already
been signed and is binding on the /overnment. 2o Duote from one news reportB
@2he MILF leadership" which is the %entral %ommittee of the MILF" has an official position. that the memorandum of
agreement on the Aangsamoro *ncestral 1omain has been signed"@ said /had;ali =aafar" MILF vice chairman for
political affairs.
'''
=aafar said the MILF considers the M)* binding because its draft agreement was @initialed@ last =uly ,> in 4uala
Lumpur by 0odolfo /arcia" government chief negotiatorJ Mohagher IDbal" MILF chief negotiatorJ 7ermogenes
(speron" presidential adviser on the peace process" and 1atu& )thman bin *bdulra;a&" chief peace facilitator for the
Malaysian government.
@)ur position is that after initialing" both parties initialed the M)*" that is a signing"@ =aafar said.
=aafar said the scheduled signing yesterday in 4uala Lumpur was merely @ceremonial and a formality" in a way to
announce to all throughout the world that a memorandum of agreement has been signed but actually the signing"
actual signing was done.@
103
@So itCs a done deal as far as the MILF is concerned"@ he said.
=aafar said the MILF and the government set a ceremonial signing of the M)* @because this is a very important
document.@
@We want to be proud of it we want to announce it throughout the world that there is a memorandum of agreement
between the Moro Islamic Liberation Front and the government of the 0epublic of the Philippines.@
7e said the MILF e'pects the government to abide by the M)* @because this agreement is binding on both parties.@
933:
It appears that the persons who initialed the M)*#*1 were Philippine Presidential Peace *dviser 7ermogenes
(speron" =r." Philippine government peace negotiator 0odolfo /arcia" MILF chief negotiator Mohagher IDbal" and
1atu& )thman bin *bdulra;a&" chief peace facilitator of the Malaysian government.
93,:
2he MILF is not a party to these petitions" and thus its position that the M)*#*1 was in fact already signed through the
initials affi'ed by representatives of the Philippine and Malaysian governments and the MILF has not been formally
presented for the %ourt for adjudication. In an earlier submission to the %ourt" I discussed the position of the MILF from
the following perspectiveB
2here is the danger that if the petitions were dismissed for mootness without additional comment" it will be advocated
by persons so interested as to ma&e the argument that the intrinsic validity of the M)*#*1 provisions has been tacitly
affirmed by the %ourt. Moreover" the unDualified dismissal of the petitions for mootness will not preclude the MILF from
presenting the claim that the M)*#*1 has indeed already been signed and is therefore binding on the Philippine
government. 2hese concerns would especially be critical if either argument is later presented before an international
tribunal" that would loo& to the present ruling of this %ourt as the main authority on the status of the M)*#*1 under
Philippine internal law.
2he use of municipal law rules for international judicial and arbitral procedure has been more common and more
specific than any other type of application.
93?:
2he International %ourt of =ustice has accepted res judicata as applicable
to international litigation.
936:
2he following observations by leading commentators on international law should give
pause for thoughtB
It is clear that" in general" judicial decisions of national tribunals! in cases involving international law" domestic as well
as international" can and will be cited for their persuasiveness by parties to an international legal dispute" the decisions
of courts and other tribunals often being seen to affirm or announce a treaty#based rule or interpretation" a tenet of
customary international law" or a general principle of law" international or domestic. '@FAcACD FecA?Ao:? Cre ?ee: C?
tr@?t>ort<B eHAFe:ce o; ><Ct t<e DC> reCDDB A? o: C GAHe: ?@bIectJ and this point is verified by most of the leading
international adjudicative and arbitral decisions that have helped to lay the foundations of" and otherwise articulate" the
substance of international law.
93+:
Words in parenthesis and emphasis supplied!
2hus" in my earlier submission" I stated that should this matter ever be referred to an international tribunal for
adjudication" it is highly probable that a ruling based on mootness alone without more would be ta&en as an indicative
endorsement of the validity of the M)* under Philippine law. 2hat misimpression should be rectified for purposes that
transcend the ordinary adjudicative e'ercise" I stressed.
Firstly" is the MILF correct when it asserted that the M)*#*1 may already be considered as binding on the Philippine
governmentN
0eference to the initialed but unsigned copy of the M)*#*1 is useful.
93<:
2here are three distinct initials that appear at
the bottom of each and every page of the 33#page M)*#*1B that of /arcia and (speron for the Philippine negotiating
panel" and that of IDbal for the MILF. Page 33" the signature page" appears as followsB
I8 WI28(SS W7(0()F" the undersigned being the representatives of the Parties hereby affi' their signatures.
1one this +
th
day of *ugust" ,--. in 4uala Lumpur" Malaysia.
F)0 27( /0P F)0 27( MILF
unsigned!
0)1)LF) %. /*0%I*
unsigned!
M)7*/7(0 IPA*L
104
%hairman
/0P Peace 8egotiating Panel
%hairman^
MILF Peace 8egotiating Panel
WI28(SS(1 A$B
unsigned!
1*2K4 )27M*8 AI8 *A1 0*H*4
Special *dviser to the Prime Minister
(81)0S(1 A$B
unsigned!
*MA*SS*1)0 S*$(1 (LM*S0$
*dviser to )rgani;ation of the Islamic %onference )I%! Secretary /eneral and Special (nvoy for Peace Process in
Southern Philippines
I8 27( P0(S(8%( )FB
unsigned!
10. *LA(02) /. 0)MKL) 1*2)C S(0I K2*M*
Secretary of Foreign *ffairs
0epublic of the Philippines
unsigned!
10. 0*IS AI8 $*2IM
Minister of Foreign *ffairs
Malaysia
Initialed by
Sec. 0odolfo /arcia initialed! Mohagher IDbal initialed!
Sec. 7ermogenes (speron initialed!
Witnessed byB
1atu& )thman bin *bd 0a;a& initialed!
1ated ,> =uly ,--.
2wo points are evident from the above#Duoted portion of the M)*#*1. 1irst" the affi'ation of signatures to the M)*#
*1 was a distinct procedure from the affi'ation of initials to the pages of the document. Initiali;ation was accomplished
on ,> =uly ,--." while signature was to have been performed on + *ugust ,--.. 2he initialing was witnessed by only
one person" 0a;a&" while the signing of the M)*#*1 was to have been witnessed by the respective heads of the
Foreign *ffairs departments of the Philippines and Malaysia. %learly" signing and initialing was not intended to be one
and the same.
Second" it is uneDuivocal from the document that the M)*#*1 was to ta&e effect upon the affi'ation of signatures on +
*ugust ,--. in 4uala Lumpur" Malaysia" and not through the preliminary initialing of the document on ,> =uly ,--..
Knder our domestic law" consent of the parties is an indispensable element to any valid contract or agreement.
93>:
2he
three stages of a contract include its negotiation or preparation" its birth or perfection" and its fulfillment or
consummation. 2he perfection of the contract ta&es place only upon the concurrence of its three essential reDuisites #
consent of the contracting parties" object certain which is the subject matter of the contract" and cause of the obligation
which is established.
93.:
Kntil a contract is perfected" there can be no binding commitments arising from it" and at any
time prior to the perfection of the contract" either negotiating party may stop the negotiation.
935:
%onsent is indubitably manifested through the signature of the parties. 2hat the Philippine government has not yet
consented to be bound by the M)*#*1 is indubitable. 2he parties had agreed to a formal signature ceremony in the
presence of the Secretary of Foreign *ffairs" the alter ego of the President of the Philippines. 2he ceremony never too&
place. 2he M)*#*1 itself e'presses that consent was to manifested by the affi'ation of signatures" not the affi'ation of
initials. In addition" the subseDuent announcement by the President that the Philippine /overnment will not sign the
105
M)*#*1 further establishes the absence of consent on the part of the Philippines to the M)*#*1. Knder domestic
law" the M)*#*1 cannot receive recognition as a legally binding agreement due to the absence of the indispensable
reDuisite of consent to be bound.
8onetheless" it is unli&ely that the MILF or any other interested party will see& enforcement of the M)* with the
Philippine courts. * more probable recourse on their part is to see& enforcement of the M)* before an international
tribunal. %ould the Philippines be considered as being bound by the M)* under international lawN
Preliminarily" it bears attention that =ustice Morales has e'haustively and correctly debun&ed the proposition that the
M)*#*1 can be deemed a binding agreement under international law" or that it evinces a unilateral declaration of the
Philippine government to the international community that it will grant to the Aangsamoro people all the concessions
stated in the M)*#*1. It would thus be improper to analy;e whether the M)*#*1 had created binding obligations
through the lens of international law or through an instrument as the Eienna %onvention on the Law of 2reaties" as it
should be domestic law alone that governs the interpretation of the M)*#*1.
8onetheless" even assuming that international law principles can be utili;ed to e'amine that Duestion" it is clear that
the MILFCs claim that the M)*#*1 is already binding on the Philippine government will not prevail.
2he successful outcome of negotiation of international agreements is the adoption and authentication of the agreed
te't.
9,-:
)nce a written te't is agreed upon and adopted" it is either signed" or initialed and subseDuently signed by the
diplomats and then submitted to the respective national authorities for ratification.
9,3:
)nce a treaty has been adopted"
the manner in which a state consents to be bound to it is usually indicated in the treaty itself.
9,,:
Signature only
e'presses consent to be bound when it constitutes the final stage of a treaty#ma&ing process.
9,?:
0eisman" *rsanjani" Wiessner L Westerman e'plain the procedure in the formation of international agreements"
including the distinction between initialing and signingB
2reaties are negotiated by agents of states involved. Ksually" once the agents agree on a te't" the authenticity of this
agreed#upon mutual commitment is confirmed by the agents placing their initials on the draft agreement @initialing@!.
2heir principals" usually the heads of state or their representatives" then sign the treaty within a time period specified in
the treaty" and submit it to internal processes" usually legislative authorities" for approval. )nce this approval is
secured" the heads of state e'press the consent of their state to be bound by depositing an instrument of ratification
with the depositary power in the case of a multilateral treaty! or with the other state party in the case of a bilateral
treaty!. In the case of a multilateral treaty not signed in time" a state can still validly declare its consent to be bound by
submitting an instrument of accession.
9,6:
2his discussion is confirmatory that initialing is generally not the act by which an international agreement is signed" but
a preliminary step that confirms the authenticity of the agreed#upon te't of the agreement. 2he initialing of the
agreement reflects only the affirmation by the negotiating agents that the te't of the prospective agreement is
authentic. It is plausible for the negotiating agents to have initialed the agreement but for the principal to later repudiate
the same before signing the agreement.
*rticle 3,,!a! of the Eienna %onvention on the Law of 2reaties does provide that @the initialing of a te't constitutes a
signature of the treaty when it is established that the negotiating States so agreed.@ *t bar" it is evident that there had
been no agreement that the mere initialing of the M)*#*1 would constitute the signing of the agreement. In fact" it
was e'plicitly provided in the M)*#*1 that the signing of the agreement would ta&e place on a date different from that
when the document was initialed. Further" a formal signing ceremony independent of the initialing procedure was
scheduled by the parties.
2he fact that the M)*#*1 reflects an initialing process which is independent of the affi'ation of signatures" which was
to be accomplished on a specific date which was days after the M)*#*1 was initialed" plainly indicates that the parties
did not intend to legally bind the parties to the M)* through initialing. 2here is no cause under international law to
assume that the M)*#*1" because it had been initialed" was already signed by the Philippine /overnment or the MILF
even.
106
III&
2he position of the MILF that the M)*#*1 already creates binding obligations imposable on the /overnment cannot
ultimately be sustained" even assuming that the initialing of the document had such binding effect. 2hat position of the
MILF supposes that the provisions of the M)*#*1 are intrinsically valid under Philippine law. t tCLe? :o A:K@ArB Ct
GreCt Fe=t< to be e:DAG<te:eF t<Ct t<e *OA)A" A? A:co:Gr@o@? >At< t<e P<ADA==A:e Co:?tAt@tAo:.
2he %onstitution establishes a framewor& for the administration of government through political subdivisions. 2he
territorial and political subdivisions of the 0epublic of the Philippines are the provinces" cities" municipalities" and
barangays.
9,+:
In addition" there shall be autonomous regions in Muslim Mindanao and the %ordilleras" in accordance
with respective organic acts enacted by %ongress.
9,<:
2he %onstitution has adopted decentrali;ation as a governing
principle with respect to local government rule" and this especially holds true with respect to the autonomous regions.
*s we e'plained in Disomangcop $& DP<6B
9,>:
0egional autonomy is the degree of self#determination e'ercised by the local government unit vis#F #vis the central
government.
In international law" the right to self#determination need not be understood as a right to political separation" but rather
as a comple' net of legal#political relations between a certain people and the state authorities. It ensures the right of
peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity" the
establishment of priorities by the communityCs internal decision#ma&ing processes and the management of collective
matters by themselves.
If self#determination is viewed as an end in itself reflecting a preference for homogeneous" independent nation#states"
it is incapable of universal application without massive disruption. 7owever" if self#determination is viewed as a means
to an end##that end being a democratic" participatory political and economic system in which the rights of individuals
and the identity of minority communities are protected##its continuing validity is more easily perceived.
0egional autonomy refers to the granting of basic internal government powers to the people of a particular area or
region with least control and supervision from the central government.
2he objective of the autonomy system is to permit determined groups" with a common tradition and shared social#
cultural characteristics" to develop freely their ways of life and heritage" e'ercise their rights" and be in charge of their
own business. 2his is achieved through the establishment of a special governance regime for certain member
communities who choose their own authorities from within the community and e'ercise the jurisdictional authority
legally accorded to them to decide internal community affairs.
In the Philippine setting" regional autonomy implies the cultivation of more positive means for national integration. It
would remove the wariness among the Muslims" increase their trust in the government and pave the way for the
unhampered implementation of the development programs in the region. '''
9,.:
*t the same time" the creation of autonomous regions does not signify the establishment of a sovereignty distinct from
that of the 0epublic" as it can be installed only @within the framewor& of this %onstitution and the national sovereignty
as well as territorial integrity of the 0epublic of the Philippines.@
9,5:
*t present" the constitutional mandate of local autonomy for Muslim Mindanao has already been implemented.
0epublic *ct 8o. <>?6 0.*. <>?6!" entitled%.n .ct Pro$iding for .n -rganic .ct for the .utonomous Region in ,uslim
,indanao"%was enacted and signed into law on 3 *ugust 35.5.2he law contains elaborate provisions on the powers of
the 0egional /overnment and the areas of jurisdiction which are reserved for the 8ational /overnment. 2he year ,--3
saw the passage of 0epublic *ct 8o. 5-+6" entitled @*n *ct to Strengthen and ('pand the )rganic *ct for the
*utonomous 0egion in Muslim Mindanao" *mending for the Purpose
0epublic *ct 8o. <>?6" entitled *n *ct Providing for the *utonomous 0egion in Muslim Mindanao" as *mended.@ 0ep.
*ct 8o. 5-+6 contains detailed provisions on the powers of the 0egional /overnment and the retained areas of
governance of the 8ational /overnment.
107
8othing prevents %ongress from amending or reenacting an )rganic *ct providing for an autonomous region for
Muslim Mindanao" even one that may see& to accommodate the terms of the M)*#*1. 8onetheless" the paramount
reDuirement remains that any organic act providing for autonomy in Mindanao must be in alignment with the
%onstitution and its parameters for regional autonomy.
2he following provisions from *rticle O of the %onstitution spell out the scope and limitations for the autonomous
regions in Mindanao and the %ordillerasB
Sec. 3.. 2he %ongress shall enact an organic act for each autonomous region with the assistance and participation of
the regional consultative commission composed of representatives appointed by the President from a list of nominees
from multisectoral bodies. 2he organic act shall define the basic structure of government for the region consisting of
the e'ecutive department and legislative assembly" both of which shall be elective and representative of the
constituent political units. 2he organic acts shall li&ewise provide for special courts with personal" family" and property
law jurisdiction consistent with the provisions of this %onstitution and national laws.
2he creation of the autonomous region shall be effective when approved by majority o the votes cast by the constituent
units in a plebiscite called for the purpose" provided that only provinces" cities" and geographic areas voting favorably
in such plebiscite shall be included in the autonomous region.
Sec. ,-. Within its territorial and subject to the provisions of this %onstitution and national laws" the organic act of
autonomous regions shall provide for legislative powers overB
3! *dministrative organi;ationJ
,! %reation of sources of revenuesJ
?! *ncestral domain and natural resourcesJ
6! Personal" family" and property relationsJ
+! 0egional urban and rural planning developmentJ
<! (conomic" social" and tourism developmentJ
>! (ducational policiesJ
.! Preservation and development of the cultural heritageJ and
5! Such other matters as may be authori;ed by law for the promotion of the general welfare of the people of the
region.
Sec. ,3. 2he preservation of peace and order within the regions shall be the responsibility of the local police agencies
which shall be organi;ed" maintained" supervised" and utili;ed in accordance with applicable laws. 2he defense and
security of the regions shall be the responsibility of the 8ational /overnment.
2he autonomous regional government to be established through the organic act consists of the e'ecutive and
legislative branches of government" both of which are elective. With respect to the judicial branch" the %onstitution
authori;es the organic acts to provide for special courts with jurisdiction limited over personal" family and property law.
2he scope of legislative powers to be e'ercised by the autonomous legislative assembly is limited to the e'press
grants under Section ,-" *rticle O. 2he national government retains responsibility over the defense and security of the
autonomous regions. In addition" under Section 3>" *rticle O" @9a:ll powers" functions" and responsibilities not granted
by this %onstitution or by law to the autonomous regions shall be vested in the 8ational /overnment.@
2he M)*#*1 ac&nowledges that the Aangsamoro =uridical (ntity A=(! shall have authority and jurisdiction over the
territory defined in the agreement as the ancestral domain of the Aangsamoro people. For the A=( to gain legal
recognition under the %onstitution" it must be identifiable as one of the recogni;ed political subdivisions ordained in the
%onstitution. 2hat is not the case. In fact" it is apparent that the A=( would have far superior powers than any of the
political subdivisions under the %onstitution" including the autonomous regional government for Muslim Mindanao.
2he powers of government e'tended to the A=( are well in e'cess than that which the %onstitution allocates to the
autonomous regional government for Muslim Mindanao. For e'ample" it was agreed upon in the M)* thatB
92:he A=( shall be empowered to build" develop and maintain its own institutions" inclusive of" civil service" electoral"
108
financial and ban&ing" education" legislation" legal" economic" and police and internal security force" judicial system
and correctional institutions" necessary for developing a progressive Aangsamoro society...
9?-:
Knder the %onstitution" the e'tent through which the autonomous regional government could establish a judicial
system was confined to the e'tent of courts with jurisdiction over personal" property and family law.
9?3:
)bviously" the
M)*#*1 intends to empower the A=( to create a broader#based judicial system with jurisdiction over matters such as
criminal law or even political law. 2his provision also derogates from the authority of the constitutional commissions"
most e'plicitly the %ivil Service %ommission %S%! and the %ommission on (lections %)M(L(%!. 2he %S%
administers the civil service" which embraces all branches" subdivisions" instrumentalities" and agencies of the
/overnment.
9?,:
$et the M)*#*1 would empower the A=( to build" develop and maintain its own civil service. 2he A=(
is li&ewise authori;ed to establish its own electoral institutions. $et under the %onstitution" it is the %)M(L(% which
has the e'clusive power to enforce and administer election laws.
9??:
Much of the M)*#*1 centers on agreements relating to the e'ploitation of the economic resources over the proposed
Aangsamoro homeland. 2he A=( is vested with jurisdiction" power and authority over land use" development"
utili;ation" disposition and e'ploitation of natural resources within that territory. 2o that end" the A=( is empowered @to
revo&e or grant forest concessions" timber license" contracts or agreements in the utili;ation and e'ploitation of natural
resources.@
9?6:
)ne provision of the M)*#*1 ma&es it certain that it is the A=( which has e'clusive jurisdiction in the
e'ploitation of natural resources" particularly those utili;ed in the production of energyB
=urisdiction and control over" and the right of e'ploring for" e'ploiting" producing and obtaining all potential sources of
energy" petroleum" in situ" fossil fuel" mineral oil and natural gas" whether onshore or offshore" is vested in the
Aangsamoro juridical entity as the party having control within its territorial jurisdiction" provided that in times of national
emergency" when public interest so reDuires" the %entral /overnment may" during the emergency" for a fi'ed period
and under reasonable terms as may be agreed by both Parties" temporarily assume or direct the operations of such
strategic resources.
9?+:
2hese powers" which are unavailable to any of the political subdivisions" are reserved under the %onstitution to the
0epublic as the owner of all lands of the public domain" waters" minerals" coal" petroleum" and other mineral oils" all
forces of potential energy" fisheries" forests or timber" wildlife" flora and fauna" and other natural resources.
9?<:
*s a corollary to the A=(Cs power over the e'ploitation of natural resources" the M)*#*1 accords it freedom @to enter
into any economic cooperation and trade relations with foreign countries"@ including @the option to establish and open
Aangsamoro trade mission in foreign countries with which it has economic cooperation agreements.@
9?>:
Such a
@freedom@ is contrary to the long#established principle that @9i:n our system of government" the President" being the
head of state" is regarded as the sole organ and authority in e'ternal relations and is the countryCs sole representative
with foreign nations.@
9?.:
2he M)*#*1 even assures that @the %entral /overnment shall ta&e necessary steps to ensure the Aangsamoro
juridical entityCs participation in international meetings and events" e.g. *S(*8 meetings and other speciali;ed
agencies of the Knited 8ations.@
9?5:
2hese terms effectively denote a concession on the part of the 0epublic of the
Philippines of a segregate legal personality to the A=( before international fora.
It bears reminder that regional autonomy under *rticle O of the %onstitution remains @within the framewor& of this
%onstitution and the national sovereignty as well as territorial integrity of the 0epublic of the Philippines@. 2hese
provisions of the M)*#*1 are e'tra#constitutional and diminish national sovereignty as they allocate to the A=(
powers and prerogatives reserved under the %onstitution to the State. %learly" the framewor& of regional government
that premises the M)*#*1 is unwor&able within the conte't of the %onstitution.
I9&
* member of the /0P Peace Panel" *tty. Sedfrey %andelaria" had admitted to the %ourt during the oral arguments
held on ,5 *ugust ,--. that the implementation of the M)*#*1 would reDuire amendments to the %onstitution. 2hat
admission effectively concedes that the M)*#*1 is inconsistent with the %onstitution" and thus cannot acDuire valid
status under Philippine law.
109
It was evident thought on the part at least of the Philippine negotiating panel" that the price for peace in Mindanao
involved in part" the amendment of the Philippine %onstitution. 2here is nothing theoretically wrong with that notion" but
because that choice is the most fundamental one the sovereign people can adopt" any binding commitment to enact
charter change underta&en by an agent of government must be intensely scrutini;ed.
*ny legally binding commitment to amend the %onstitution can only come from the political institutions and the
sovereign people who are empowered by the charter to amend the %onstitution. 2he President nor any other member
or office of the e'ecutive branch does not have the power to effect changes to the %onstitution even if he wanted to in
the paramount interest of the country and of the people. *ny commitment to any entity on the part of the President or
his political appointees to amend the %onstitution is inherently ultra $ires" because the ('ecutive Aranch does not
have the innate power to effectuate such changes on its own. 8either does the President have the power to bind to
positive action those whom the %onstitution entrusts the power to amend the charter" namelyJ the %ongress" the
delegates to a constitutional convention" and the electorate.
%onstitutional order cannot be sacrificed for e'pediency" even if in the name of peace in Mindanao. *ssuming that the
e'ecutive branch has in good faith become intractably convinced that it is necessary to amend the %onstitution in order
to obtain lasting peace in Mindanao" the conseDuent step should not be to ma&e promises it has no power alone to
&eep" hoping against hope that the %ongress and the voters would ultimately redeem the promises. Since
constitutional amendments are involved" the ability of the e'ecutive branch to underta&e any legally binding
commitment to amend the %onstitution can only be recogni;ed" if at all" with the prior appropriate authori;ation of
%ongress" acting with the specified majorities provided in Section 33!" *rticle OEII of the %onstitution.
96-:
Knder such a
mechanism" any constitutionally#oriented concessions offered by the Philippine government would contemporaneously
bear the preliminary seal of approval by the people or institutions authori;ed to propose amendments to the
%onstitution" subject to final ratification by the people through a plebiscite.
2he /overnment would have been spared of the embarrassment and outcry had it acted with more prudence by first
securing the necessary political mandate to underta&e charter change for the benefit of Mindanao" instead of acting
brashly and rashly by acceding at the outset to the underta&ing without consulting the %ongress or the people. In the
end" the issuance of the 20) by this %ourt proved highly providential" as even the /overnment wound up seeing the
proverbial light before it was too late.
With the foregoing Dualifications" I vote to dismiss the petitions and register my dissent from the result reached by the
majority.
93:
I. %0KH. %)8S2I2K2I)8*L L*W ,--> ed.!" at ,?. See *LS) 0. M*02I8" P7ILIPPI8( %)8S2I2K2I)8*L L*W
35+6 ed.!" at +<#+>.
9,:
E. M(81)H*" =K1I%I*L 0(EI(W )F %)8S2I2K2I)8*L PK(S2I)8B %*S(S *81 M*2(0I*LS ,--6 ed.!" at
3->.
9?:
??> Phil. <+6" <+. 355>!.
96:
/.0. 8o. 3>..?-" 36 =uly ,--.. *vailable at httpBIIwww.supremecourt.gov.phIjurisprudence I
,--.Ijuly,--.I3>..?-.htm.
9+:
Knder Section 3" 0ule 3,5 of the 0ules of %ourt. @)udicial !otice#when mandator"& -* court shall ta&e judicial
notice"without introduction of evidence" of the e'istence and territorial e'tent of states" their political history" forms of
government and symbols of nationality" the law of nations" the admiralty and maritime courts of the world and their
seals" the political constitution and history of the Philippines"the official acts of thelegislative"e'ecutiveand judicial
departments of the Philippines" the laws of nature" the measure of time" and the geographical divisions.@
9<:
Supra note 6.
110
9>:
@,-.-.D will not be signed b" go$'t regardless of what S5 decides on the issue - P/,.@. From @2he )fficial
Website of the /overnment of the Philippines@ httpBIIwww.gov.phInewsINi[,,?5,!" dated ? )ctober ,--..
9.:
/.0. 8o. 3+5-.+" 3+53-?" and 3+535<" ? February ,--6" 6,3 S%0* <+<.
95:
Id. at <<+.
93-:
W.M. 0eisman" M. *rsanjani" S. Wiessner L /. Westerman" International 0aw in 5ontemporar" Perspecti$e ,--6
ed.!" at 3,.-.
933:
E. 0eyes" @MILFB Pact a donedeal after initialing"@ ,ala"a < *ugust ,--.! at
httpBIIwww.malaya.com.phIaug-<Inews?.htm last visited" 33 )ctober ,--.!.
93,:
@/o$tE Initials do not make draft ,-. on ancestral domain a done deal @./M*8ews.2v" at
httpBIIwww.gmanews.tvIstoryI333.?-I/ovt#Initials#do#not#ma&e#draft#M)*#on#ancestral#domain#a#done#deal last
visited" 33 )ctober ,--.!.
93?:
A. W(S2)8" 0. F*L4" 7. %7*0L(SW)027 L *. S20*KSS" I!'*R!.'I-!.0 0.< .!D <-R0D -RD*RE .
PR-(0*,--RI*!'*D 5-3RS*(--= 6
th
ed!" at 366J words in parenthesis supplied.
936:
Id." citing (FF(%2 )F *W*01S M*1( A$ 27( K8I2(1 8*2I)8S *1MI8IS20*2IE( 20IAK8*L" 35+< I%= +?
*dvisory )pinion!.
93+:
Id. at 3+3.
93<:
See *nne' @A@ to Petition in /.0. 8o. 3.?.5?.
93>:
See %IEIL %)1(" *rt. 3?3..
93.:
=. EI2K/" III %IEIL L*WB )ALI/*2I)8S *81 %)820*%2S ,--? ed.!" at 3-.#3-5.
935:
Id. at 3-5.
9,-:
=. A0)W8LI(" PRI!5IP0*S -1 P3(0I5 I!'*R!.'I-!.0 0.< <
th
ed.!" at +.,.
9,3:
*. %*SS(S(" I!'*R!.'I-!.0 0.< ,
nd
ed.!" at 3>,.
9,,:
S. MK0P7$" PRI!5IP0*S -1 I!'*R!.'I-!.0 0.< ,--< ed.!" at <..
9,?:
M. FI2HM*K0I%(" @27( *8*2)M$ )F * 20(*2$"@ I8 I!'*R!.'I-!.0 0.< :-+ford;" ed. by M.(vans.
9,6:
Supra note 3- at 3,.-#3,.3.
9,+:
%onst." *rt. O" Sec..
9,<:
%onst." Sect. 3+" in relation with *rt. O" Sec. 3.
9,>:
/.0. 8o. 365.6." ,+ 8ovember ,--6" 666 S%0* ,-?.
9,.:
Id. at ,?-#,?3.
9,5:
Id. at ,,5J citing %onst." *rt. O" Sec. 3+. Seealso III0ecord,?+" 3, *ugust 35.<B
111
M0. 8)LL(1). *s I already stated" these autonomous regions are established within the framewor& of our national
sovereignty. *nd in answer to the Duestion of %ommissioner Aeng;on this morning that should there be rebels against
the government" whether this will prevent the President from sending armed forces to suppress the rebellion" I said"
@8o" because of the e'pression Mwithin the framewor& of national sovereignty.C@ We are not granting sovereignty to the
autonomous region. 2hat is why the term @power of autonomous region@ was appropriately used because as an
accepted principle in constitutional law" sovereignty is indivisible. 2hat is why we also maintain the provision in both
%ommittee 0eport 8os. ,3 and ,+ that the President of the Philippines has supervisory power over autonomous
regions to see to it that laws are faithfully e'ecuted. So" I find no inconsistency between the powers to be granted to
autonomous regions and the sovereignty of the 0epublic of the Philippines.
9?-:
M)*#*1" /overnance" Par. ..
9?3:
See %onst." *rt. O" Sec. 3..
9?,:
See %onst." *rt. IO#A" Sec. ,3! in relation to Sec. 33!.
9??:
%onst." *rt. IO#%" Sec. ,3!.
9?6:
M)*#*1" 0esources" Par. ,d!.
9?+:
M)*#*1" 0esources" Paragraph +.
9?<:
See *rt. OII" Sec. , which also provides @2he e'ploration" development" and utili;ation of natural resources shall be
under the full control and supervision of the State.@
9?>:
M)*#*1" 0esources" par. 6.
9?.:
Pimentel# )r& $& -ffice of the *+ecuti$e Secretar"" /.0. 8o. 3+.-.." < =uly ,--+" 6<, S%0* <,," <?,J citing I.
%ortes" 'he Philippine Presidenc"E . Stud" of *+ecuti$e Power 35<<!" p. 3.>. @92:he President is vested with the
authority to deal with foreign states and governments" e'tend or withhold recognition" maintain diplomatic relations"
enter into treaties" and otherwise transact the business of foreign relations. In the realm of treaty#ma&ing" the President
has the sole authority to negotiate with other states.@ Id.
9?5:
Id.
96-:
@*ny amendment to" or revision of" this %onstitution may be proposed byB
3! 2he %ongress" upon a vote of three#fourths of all its members '''@
&EPARATE OPNON
CHCO)NA2ARO, $.8
2he piece of writing being assailed in these consolidated Petitions is a peace negotiation document" namely the
*eEorC:F@E o; AGreeEe:t o: t<e A:ce?trCD "oECA: A?=ect o; t<e GRP)*$! TrA=oDA AGreeEe:t o; PeCce o;
2001 M)*!. 2he Solicitor /eneral e'plained that this document" prepared by the joint efforts of the /overnment of the
0epublic of the Philippines /0P! Peace Panel and the Moro Islamic Liberation Front MILF! Peace Panel" was merely
a codification of consensus points reached between both parties and the aspirations of the MILF to have a
Aangsamoro homeland.
93:
SubseDuently" the Solicitor /eneral moved for the dismissal of the consolidated cases at bar
based on changed circumstances as well as developments which have rendered them moot" particularly the ('ecutive
1epartmentCs statement that it would no longer sign the Duestioned peace negotiation document.
9,:
8onetheless"
several parties to the case" as well as other sectors" continue to push for what they call a @complete determination@ of
112
the constitutional issues raised in the present Petitions.
I believe that in light of the pronouncement of the ('ecutive 1epartment to already abandon the M)*" the issue of its
constitutionality has obviously become moot.
2he rule is settled that no Duestion involving the constitutionality or validity of a law or governmental act may be heard
and decided by the court unless there is compliance with the legal reDuisites for judicial inDuiry" namelyB that the
Duestion must be raised by the proper partyJ that there must be an actual case or controversyJ that the Duestion must
be raised at the earliest possible opportunityJ and" that the decision on the constitutional or legal Duestion must be
necessary to the determination of the case itself. Aut the most important are the first two reDuisites.
9?:
For a court to e'ercise its power of adjudication" there must be an actual case or controversy ## one which involves a
conflict of legal rights" an assertion of opposite legal claims susceptible of judicial resolutionJ t<e cC?e E@?t :ot be
Eoot or CcCFeEAc or bC?eF o: e9trC)DeGCD or ot<er ?AEADCr co:?AFerCtAo:? not cogni;able by a court of justice. *
case becomes moot and academic when At? =@r=o?e <C? becoEe ?tCDe.
96:
*n action is considered @moot@ when it no
longer presents a justiciable controversy because the A??@e? A:HoDHeF <CHe becoEe CcCFeEAc or FeCF or when the
matter in dispute has already been resolved and hence" one is not entitled to judicial intervention unless the issue is
li&ely to be raised again between the parties. Simply stated" there is nothing for the court to resolve as the
determination thereof has been overta&en by subseDuent events.
9+:
Such is the case here.
2he M)* has not even been signed" and will never be. Its provisions will not at all come into effect. 2he M)* will
forever remain a draft that has never been finali;ed. It is now nothing more 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. 2he instant Petitions" therefore" and all
other oppositions to the M)*" have no more leg to stand on. 2hey no longer present an actual case or a justiciable
controversy for resolution by this %ourt.
*n actual case or controversy e'ists when there is a conflict of legal rights or an assertion of opposite legal claims"
which can be resolved on the basis of e'isting law and jurisprudence. * justiciable controversy is distinguished from a
hypothetical or abstract difference or dispute" in that the former involves a definite and concrete dispute touching on
the legal relations of parties having adverse legal interests. * justiciable controversy admits of specific relief through a
decree that is conclusive in character" whereas an opinion only advises what the law would be upon a hypothetical
state of facts.
9<:
For the %ourt to still rule upon the supposed unconstitutionality of the M)* will merely be an academic e'ercise. It
would" in effect" only be delivering an opinion or advice on what are now hypothetical or abstract violations of
constitutional rights.
In .bbas $& 5ommission on *lections"
9>:
the 35>< 2ripoli *greement and 0epublic *ct 8o. <>?6 the )rganic *ct for
the *utonomous 0egion in Muslim Mindanao! were challenged for purported violations of the provisions of the
%onstitution on freedom of religion. 2he %ourt held therein that it should not inDuire into the constitutionality of a peace
agreement which was already consummated the 35>< 2ripoli *greement! and an )rganic *ct which was already
passed into law 0.*. 8o. <>?6! just because of potential conflicts with the %onstitution. 2hen" with more reason
should this %ourt desist from ruling on the constitutionality of the M)* which is unsigned" and now entirely abandoned"
and as such" cannot even have any potential conflict with the %onstitution.
2he %ourt should not feel constrained to rule on the Petitions at bar just because of the great public interest these
cases have generated. We are" after all" a court of law" and not of public opinion. 2he power of judicial review of this
%ourt is for settling real and e'istent dispute" it is not for allaying fears or addressing public clamor. In acting on
supposed abuses by other branches of government" the %ourt must be careful that it is not committing abuse itself by
ignoring the fundamental principles of constitutional law.
113
2he ('ecutive 1epartment has already manifested to this %ourt" through the Solicitor /eneral" that At >ADD :ot ?AG: t<e
*OA A: At? =re?e:t ;orE or A: C:B ot<er ;orE. It has declared the same intent to the public. For this %ourt to insist
that the issues raised in the instant Petitions cannot be moot for they are still capable of repetition is to totally ignore
the assurance given by the ('ecutive 1epartment that it will not enter into any other form of the M)* in the future. 2he
%ourt cannot doubt the sincerity of the ('ecutive 1epartment on this matter. 2he %ourt must accord a co#eDual branch
of the government nothing less than trust and the presumption of good faith.
Moreover" I deem it beyond the power of this %ourt to enjoin the ('ecutive 1epartment from entering into agreements
similar to the M)* in the future" as what petitioners and other opponents of the M)* pray for. Such prayer once again
reDuires this %ourt to ma&e a definitive ruling on what are mere hypothetical facts. * decree granting the same" without
the %ourt having seen or considered the actual agreement and its terms" would not only be premature" but also too
general to ma&e at this point. It will perilously tie the hands of the ('ecutive 1epartment and limit its options in
negotiating peace for Mindanao.
Kpon the ('ecutive 1epartment falls the indisputably difficult responsibility of diffusing the highly volatile situation in
Mindanao resulting from the continued clashes between the Philippine military and Muslim rebel groups. In negotiating
for peace" the ('ecutive 1epartment should be given enough leeway and should not be prevented from offering
solutions which may be beyond what the present %onstitution allows" as long as such solutions are agreed upon
subject to the amendment of the %onstitution by completely legal means.
Peace negotiations are never simple. If neither party in such negotiations thin&s outside the bo'" all they would arrive
at is a constant impasse. 2hus" a counsel for one of the intervenors who assert the unconstitutionality of the M)*
9.:

had no choice but to agree as followsB
*SS)%I*2( =KS2I%( PKISKMAI8/B Well" we reali;e the constitutional constraints of sovereignty" integrity and the
li&e" but isnCt there a time that surely will come and the life of our people when they have to transcend even these
limitationsN
1(*8 */*AI8B $es" we have seen it happen in several instances" $our 7onor.
' ' '
*SS)%I*2( =KS2I%( PKISKMAI8/B *nd in pursuit of that purpose" the Supreme %ourt cannot loo& beyond the
hori;on and loo& for more satisfying resultN
1(*8 */*AI8B Well" if you mean by loo&ing beyond the hori;on" it would mean a violation of the provisions of the
%onstitution" then it should not be" $our 7onor.
*SS)%I*2( =KS2I%( PKISKMAI8/B In some part" we have gone to Malaysia. We have gone to the )I%" and we
have even gone to Libya.
1(*8 */*AI8B $es" $our 7onor. Aut in all these" we have always insisted on preserving the territorial integrity of the
country.
*SS)%I*2( =KS2I%( PKISKMAI8/B *nd this dicta or 9dogma: is unassailable forever. 2here cannot be an
e'ception.
1(*8 */*AI8B It is unassailable under the present %onstitution" $our 7onor.
*SS)%I*2( =KS2I%( PKISKMAI8/B Aut" at least" you can also agree that the %onstitution ought to be changed in
order for a country to fulfill its internal obligation as a matter of necessity.
1(*8 */*AI8B $es" if the people so will it" your 7onor.
114
*SS)%I*2( =KS2I%( PKISKMAI8/B $ou remember how the emperor of =apan lost his divinityN 2hey just changed
their %onstitution" isnCt itN
1(*8 */*AI8B $es" it was enforced upon him by Mr. Mc*rthur" and they have no choice.
A&&OCATE '#&TCE 6#&#*BNG8 ?:Ot t<Ct C HerB GooF e9CE=De o; t<A:LA:G o@t?AFe t<e bo9N T<Ct o:e FCB
eHe: t<o?e ><o Cre @:FerGro@:F ECB <CHe to t<A:L. B@t ;rC:LDB :o> "eC:, be;ore e:F, ECB C?L, A? At
=o??AbDe to EeDF or EoFA;B o@r Co:?tAt@tAo:CD OrFer A: orFer to <CHe ?oEe rooE ;or t<e :e>DB FeHeDo=A:G
A:ter:CtAo:CD :otAo:? o: A??ocACtAHe GoHer:C:ce ReG@DCtAo: *oHeEe:t C:F H@EC: RAG<t?N
"EAN AGABN8 %e?. t A? =o??AbDe, %o@r Ho:or, >At< t<e co:?e:t o; t<e =eo=De.
*SS)%I*2( =KS2I%( PKISKMAI8/B *nd" therefore" we vote it to a referendum or any consultation beforehandN
1(*8 */*AI8B If there is such a proposal for or amendment or revision of the %onstitution" yes" $our 7onor.
*SS)%I*2( =KS2I%( PKISKMAI8/B So" either initiative or %7*#%7* or %)8#*SN
1(*8 */*AI8B $es" $our 7onor.
95:
It must be noted that the %onstitution has been in force for three decades now" yet" peace in Mindanao still remained
to be elusive under its present terms. 2here is the possibility that the solution to the peace problem in the Southern
Philippines lies beyond the present %onstitution. ('ploring this possibility and considering the necessary amendment
of the %onstitution are not per se unconstitutional. 2he %onstitution itself implicitly allows for its own amendment by
describing" under *rticle OEII" the means and reDuirements therefor. In 'an $& ,acapagal"
93-:
where petitioners claim
that the %onstitutional %onvention was without power to consider" discuss" or adopt proposals which see& to revise the
%onstitution through the adoption of a form of government other than the form outlined in the then governing
%onstitution" the %ourt ruled thatB
9*:s long as any proposed amendment is still unacted on by 9the %onvention:" there is no room for the interposition of
judicial oversight. )nly after it has made concrete what it intends to submit for ratification may the appropriate case be
instituted. Kntil then" the %ourts are devoid of jurisdiction. ' ' '.
*t this point" there is far from a concrete proposed amendment to the %onstitution which the %ourt can ta&e
cogni;ance of" much less render a pronouncement upon.
*t most" the %ourt can only e'hort the ('ecutive 1epartment to &eep in mind that it must negotiate and secure peace
in Mindanao under terms which are most beneficial for the country as a whole" and not just one group of Muslim
insurgents. 2ransparency and consultation with all major players" which necessarily include affected local government
units and their constituents" are essential to arrive at a more viable and acceptable peace plan. 2he nature and e'tent
of any future written agreements should be clearly established from the very beginning" and the terms thereof carefully
drafted and clearly worded" to avoid misunderstandings or misconstructions by the parties and the public. If a
document is meant to be a list of consensus points still subject to further negotiations" then it should just simply state
so.
*s a final note" I find it necessary to stress that the %ourt must not allow itself to be mired in controversies affecting
each step of the peace process in Mindanao. It is not within the province or even the competence of the =udiciary to
tell the ('ecutive 1epartment e'actly what and what not" how and how not" to negotiate for peace with insurgents.
/iven this &ind of situation where war and peace hang in the balance" where peopleCs lives are at sta&e" and the
('ecutive 1epartment" under its residual powers" is tas&ed to ma&e political decisions in order to find solutions to the
insurgency problem" the %ourt should respect the political nature of the issues at bar and e'ercise judicial restraint
until an actual controversy is brought before it.
In view of the foregoing" I vote for the GRANT of the Motion to 1ismiss filed by the Solicitor /eneral and" accordingly"
for the "&*&&A$ of the Petitions at bar for being *OOT and ACA"E*C.
115
93:
0espondentCs Manifestation and Motion" 35 *ugust ,--..
9,:
Id.
9?:
)o"a $& Presidential 5ommission on /ood /o$ernment" /.0. 8o. 5<+63" ,6 *ugust 355?" ,,+ S%0* +<." +>+.
96:
Id.
9+:
Santiago $& 5ourt of .ppeals" /.0. 8o. 3,35-." ,< =anuary 355." ,.+ S%0* 3<" ,,.
9<:
/uingona# )r& $& 5ourt of .ppeals" ?+6 Phil. 63+" 6,< 355.!.
9>:
/.0. 8os. .5<+3 L .55<+" 3- 8ovember 35.5" 3>5 S%0* ,.>.
9.:
1ean Pacifico *gabin is the counsel for Intervenor Manuel *. 0o'as III.
95:
2S8" pp. <-?#<33.
93-:
3+- Phil. >>." >.+ 35>,!.
&EPARATE OPNON
RE%E&, R.T., $.8
!emo dat quod non habet. $ou cannot give what you do not have. 1indi mo maibibigay ang hindi sa iyo.
2his ma'im forcefully applies in these consolidated petitions and petitions#in#intervention for mandamus and
prohibition which in the main see& the nullification of the Memorandum of *greement on *ncestral 1omain M)*#*1!
entered into between the /overnment of the 0epublic of the Philippines /0P Panel! and the Moro Islamic Liberation
Front MILF!.
2he issues may be compressed as followsB 3! whether the petitions and petitions#in#intervention have become moot
due to supervening eventsJ and ,! whether the M)*#*1 is constitutional.
. T<e =etAtAo:? C:F =etAtAo:?)A:)A:terHe:tAo: <CHe becoEe Eoot F@e to ?@=erHe:A:G eHe:t?. Ho>eHer, t<eB
?<o@DF be FecAFeF GAHe: t<e e9ce=tAo:CD cArc@E?tC:ce?, ;oDDo>A:G >eDD L:o>: =receFe:t?.
1uring the *ugust ,5" ,--. oral arguments before the %ourt" the Solicitor /eneral manifested that the M)*#*1 will
not be signed @in its present form or in any other form.@
93:
2he *ugust ,." ,--. memorandum of the ('ecutive
Secretary also says that @the government will not sign@ the M)*#*1.
9,:
1ue to these statements" the petitions and
petitions#in#intervention have clearly become moot.
Ae that as it may" the %ourt is not precluded from passing judgment on them. It is hornboo& doctrine that courts will
decide cases" otherwise moot" when 3! there is a grave violation of the %onstitutionJ ,! the e'ceptional character of
the situation and the paramount public interest involved demandJ ?! the constitutional issue raised reDuires
formulation of controlling principles to guide the bench" the bar" and the publicJ and 6! the case is capable of repetition
yet evading review.
9?:
116
Let me cite a few e'amples.
In )a$ier $& 5ommission on *lections"
96:
petitioner (velio A. =avier was assassinated on February 33" 35.< before his
petition to the %ourt could be decided. In his petition" =avier argued that the proclamation of his rival" *rturo F.
Pacificador" was void because it was made only by a division and not by the %ommission on (lections en banc as
reDuired by the 35>? %onstitution. 2he new Solicitor /eneral moved for the dismissal of the petition on the ground of
mootness in view of supervening events. 2he %ourt refused" sayingB
2he abolition of the Aatasang Pambansa and the disappearance of the office in dispute between the petitioner and the
private respondent # both of whom have gone their separate ways # could be a convenient justification for dismissing
this case. Aut there are larger issues involved that must be resolved now" once and for all" not only to dispel the legal
ambiguities here raised. 2he more important purpose is to manifest in the clearest possible terms that t<A? Co@rt >ADD
:ot FA?reGCrF C:F A: e;;ect co:Fo:e >ro:G o: t<e ?AE=DA?tAc C:F toDerC:t =rete9t t<Ct t<e cC?e <C? becoEe
Eoot C:F CcCFeEAc.
2he Supreme %ourt is not only the highest arbiter of legal Duestions but also the conscience of the government. 2he
citi;en comes to us in the Duest of law but we must also give him justice. 2he two are not always the same. 2here are
times we cannot grant the latter because the issue has been settled and decision is no longer possible according to
the law. Aut t<ere Cre CD?o tAEe? ><e: CDt<o@G< t<e FA?=@te <C? FA?C==eCreF, C? A: t<A? cC?e, At :eHert<eDe??
crAe? o@t to be re?oDHeF. '@?tAce FeEC:F? t<Ct >e Cct t<e:, :ot o:DB ;or t<e HA:FAcCtAo: o; t<e o@trCGeF rAG<t,
t<o@G< Go:e, b@t CD?o ;or t<e G@AFC:ce o; C:F C? C re?trCA:t o: t<e ;@t@re.
9+:
(mphasis supplied!
In Salonga $& 5ruz-Pa78o"
9<:
the %ourt had already deliberated on the case" a consensus on the judgment of the %ourt
had been reached" and a draft ponencia was circulating for concurrences and separate opinions" if any. 7owever" on
=anuary 3." 35.+" respondent =udge 0odolfo )rti; granted the motion of respondent %ity Fiscal Sergio *postol to drop
the subversion case against petitioner. In accordance with the instructions of the Minister of =ustice" the prosecution
reevaluated its evidence and decided the e'clusion of petitioner as one of the accused in the information filed under
the Duestioned resolution.
7owever" this did not prevent the %ourt from deciding the merits of the petition. In doing so" the %ourt reasoned that
@9t:he setting aside or declaring void" in proper cases" of intrusions of State authority into areas reserved by the Aill of
0ights for the individual as constitutionally protected spheres where even the awesome powers of /overnment may
not enter at will is not the totality of the %ourtCs function.@ It @also has the F@tB to ;orE@DCte G@AFA:G C:F co:troDDA:G
co:?tAt@tAo:CD =rA:cA=De?, =rece=t?, FoctrA:e?, or r@De?. t <C? t<e ?BEboDAc ;@:ctAo: o; eF@cCtA:G be:c< C:F
bCr o: t<e e9te:t o; =rotectAo: GAHe: bB co:?tAt@tAo:CD G@CrC:tee?.@
9>:
Similarly" Dela 5amara $& *nage"
9.:

/onzales $& ,arcos"
95:
and .quino # )r&# $& *nrile
93-:
were decided under the same aegis.
In Da$id $& ,acapagal-.rro"o"
933:
the Solicitor /eneral moved for the dismissal of the consolidated petitions on the
ground of mootness. It was argued that because the President had already lifted her declaration of state of national
emergency" there was no longer an actual case or controversy. 2he %ourt was not convinced" saying that @[t]<e JEoot
C:F CcCFeEAcJ =rA:cA=De A? :ot C ECGAcCD ;orE@DC t<Ct cC: C@toECtAcCDDB FA??@CFe t<e co@rt? A: re?oDHA:G C
cC?e.@
93,:
It then proceeded to declare unconstitutional major parts of the declaration of state of national emergency by
the President.
=ust recently" in ,analo $& 5alderon"
93?:
@9n:otwithstanding the mootness of the issues on restrictive custody and
monitoring of movements of petitioners"@ the %ourt opted to resolve the petition for habeas corpus" due to @.C/ t<e
=CrCEo@:t =@bDAc A:tere?t A:HoDHeF, .b/ t<eAr ?@?ce=tAbADAtB o; rec@rrA:G Bet eHCFA:G reHAe>, C:F .c/ t<e
AE=erCtAHe :eeF to eF@cCte t<e =oDAce coEE@:AtB o: t<e ECtter.@
2he petitions and petitions#in#intervention call for a similar or analogous treatment by the court" due to their
transcendental importance and in the national interest.
. T<e *OA)A" A? @:co:?tAt@tAo:CD.
T<e GRP PC:eD >e:t beBo:F t<eAr ECrc<A:G orFer? ;roE t<e Pre?AFe:t.
117
2he March 3" ,--3 Memorandum of Instructions from the President"
936:
which prescribes the guidelines for the /0P
Panel in negotiating with the MILF" partly statesB
3. 'he negotiations shall be conducted in accordance with the ,andates of the Philippine 5onstitution# the Rule
of 0aw# and the principles of the so$ereignt" and territorial integrit" of the Republic of the Philippines.
,. 2he negotiation process shall be pursued in line with the national %omprehensive Peace Process" and shall
see& the principled and peace resolution of the armed conflict" with neither blame nor surrender# but with
dignit" for all concerned.
?. 2he objective of the /P8P is to attain a peace settlement that shallB
a. %ontribute to the resolution of the root cause of the armed conflict" and to societal reform"
particularly in Southern PhilippinesJ
b. 7elp attain a lasting peace and comprehensive stability in Southern Philippines under a meaningful
program of autonomy for Filipino Muslims" consistent with the Peace *greement entered into by the
/0P and the M8LF on -, September 355<J and
c. %ontribute to reconciliation and reconstruction in Southern Philippines.
6. 2he general approach to the negotiations shall include the followingB
a. See&ing a middle ground between the aspirations of the MILF and the political" social and economic
objectives of the Philippine /overnmentJ
b. %oordinated 2hird Party facilitation" where neededJ
c. 5onsultation with affected communities and sectors. (mphasis supplied!
In an apparent compliance with the 1irective of the President" the M)*#*1 mentions the following documents as
terms of reference" to witB
3. 2he *greement for /eneral %essation of 7ostilities dated =uly 3." 355> Aetween the /0P and the MILF" and
its Implementing *dministrative and )perational /uidelinesJ
,. 2he /eneral Framewor& of *greement of Intent Aetween the /0P and the MILF dated *ugust ,>" 355.J
?. 2he *greement on the /eneral Framewor& for the 0esumption of Peace 2al&s Aetween the /0P and the
MILF dated March ,6" ,--3J
6. 2he 2ripoli *greement on Peace Aetween the /0P and the MILF dated =une ,," ,--3J
+. 2he 2ripoli *greement Aetween the /0P and the Moro 8ational Liberation Front M8LF! dated 1ecember
,?" 35>< and the Final *greement on the Implementation of the 35>< 2ripoli *greement Aetween the /0P
and the M8LF dated September ," 355<J
<. 0epublic *ct 8o. <>?6" as amended by 0.*. 5-+6" otherwise &nown as @*n *ct to Strengthen and ('pand
the *utonomous 0egion in Muslim Mindanao *0MM!@J
>. IL) %onvention 8o. 3<5" in correlation to the K8 1eclaration on the 0ights of the Indigenous Peoples" and
0epublic *ct 8o. .?>3 otherwise &nown as the Indigenous Peoples 0ights *ct of 355>" the K8 %harter" the
K8 Kniversal 1eclaration on 7uman 0ights" International 7umanitarian Law I7L!" and internationally
118
recogni;ed human rights instrumentsJ and
.. %ompact rights entrenchment emanating from the regime of dar#ul#muaChada or territory under compact! and
dar#ul#sulh or territory under peace agreement! that parta&es the nature of a treaty device. For the purpose
of this *greement" a @treaty@ is defined as any solemn agreement in writing that sets out understandings"
obligations" and benefits for both parties which provides for a framewor& that elaborates the principles
declared in the *greement.
%uriously missing in the enumeration" however" is the %onstitution. 2he omission could only mean that t<e =CrtAe?
A:te:FeF t<e *OA)A" :ot to be bo@:F bB t<e ;@:FCEe:tCD DC>. T<e Co:?tAt@tAo: A? ?@==o?eF to be t<e o:e to
co:;orE to t<e *OA)A", C:F :ot t<e ot<er >CB Cro@:F.
93+:
2here can be no doubt as to the marching orders by the President. In negotiating with the MILF" the /0P Panel should
use the %onstitution as the parameter. 2oo" the preservation of the territorial integrity of the 0epublic of the Philippines
should be maintained at all times. 2he /0P Panel" however" appears to have failed to follow those instructions.
T<e coEEAtEe:t o; t<e GRP PC:eD to t<e *$! to c<C:Ge t<e Co:?tAt@tAo: to co:;orE to t<e *OA)A" HAoDCte?
t<e FoctrA:e o; ?e=CrCtAo: o; =o>er?.
Knder the present constitutional scheme" the President is a mere bystander as far as the process of constitutional
amendment or revision is concerned. 2he President is deprived of any participation because the %onstitution
93<:
only
allows three political agents" namelyB 3! the %ongress" upon a vote of three#fourths of all its membersJ ,! a
constitutional conventionJ
93>:
and ?! the people through initiative upon a petition of at least twelve 3,! per centum of
the total number of registered voters" of which every legislative district must be represented by at least three per
centum of its registered voters.
2hus" since the President is bereft of any power in effecting constitutional change" the /0P Panel" who acts under the
imprimatur of the President" cannot commit to the MILF that the %onstitution will be amended or revised in order to suit
the M)*#*1. 2hat would be a violation of the doctrine of separation of powers. !emo potest facere per alium quod
non potest facere per directum. 8o one is allowed to do indirectly what he is prohibited to do directly. Sinuman ay
hindi pinapayagan na gawin nang di tuwiran ang ipinagbabawal na gawin nang tuwiran.
T<e *OA)A" co:tCA:? :@Eero@? =roHA?Ao:? t<Ct C==eCr @:co:?tAt@tAo:CD.
0espondents claim that the contents of the M)*#*1 are mere concession points for further negotiations. 2he MILF"
however" publicly announced that the M)*#*1 is already a @done deal@ and its signing a mere formality.
93.:
I find both claims of respondents and the MILF difficult to swallow. 8either position is acceptable. 2he /0P Panel has
not presented any proof to buttress its point that" indeed" the parties intended the M)*#*1 to be mere concession
points for further negotiations. 2he MILF have not also shown proof to support its claim. In this regard" t<e *OA)A"
?<o@DF be A:ter=reteF CccorFA:G to At? ;Cce HCD@e.
7aving said that" let me point out the defects of the M)*#*1.
irst . 2he M)*#*1 creates a new political subdivision" the so#called Aangsamoro =uridical (ntity A=(!. 2his is not
permitted by the %onstitution" which limits the political subdivisions of the 0epublic of the Philippines into provinces"
cities" municipalities" barangays and autonomous regions.
935:
Worse" the A=( also trenches on the national sovereignty and territorial integrity of the 0epublic of the Philippines.
9,-:

2his is so because pursuant to the M)*#*1B 3! 2he Aangsamoro homeland and historic territory is clearly
demarcatedJ
9,3:
,! 2he A=( is given the authority and jurisdiction over the *ncestral 1omain and *ncestral lands. 2his
includes both alienable and non#alienable lands encompassed within their homeland and ancestral territory"
9,,:

specified @internal waters@
9,?:
as well as @territorial waters@J
9,6:
?! 2he declared ultimate objective of entrenching the
Aangsamoro homeland as a territorial space is @to secure their identity and posterity" to protect their property rights
119
and resources as well as to establish a system of governance suitable and acceptable to them as a distinct dominant
people. 2he Parties respect the freedom of choice of the indigenous peoplesJ@
9,+:
and 6! 2he A=( is empowered @to
build" develop and maintain its own institutions" inclusive of" civil service" electoral" financial and ban&ing" education"
legislation" legal" economic" and police and internal security force" judicial system and correctional institutions"
necessary for developing a progressive Aangsamoro society" ' ' '.@
9,<:
)therwise stated" respondents agreed to create
a A=( out of the national territory of the 0epublic" with a distinct and separate system of government from the 0epublic
of the Philippines.
9,>:
8otably" the Knited 8ations 1eclaration on the 0ights of Indigenous Peoples" while recogni;ing the rights of
indigenous peoples to self#determination" does not give them the right to undermine the territorial integrity of a State.
9,.:
Second. 2he creation of the A=( is prohibited even assuming that the M)*#*1 only attempts to create the A=( as an
autonomous region. )nly %ongress is empowered to create an autonomous region.
9,5:
In fact" 0* 8os. <>?6
9?-:
and 5-+6"
9?3:
the laws creating and e'panding the *0MM" have already been passed by
%ongress. *s a result of these )rganic *cts" the provinces of Lanao del Sur" Maguindanao" Sulu and 2awi#2awi and
the %ity of Marawi voted to comprise the *0MM territory under the control of the 0egional /overnment of the *0MM.
In the case of the M)*#*1" no implementing law is provided to implement its terms. What it purports to do" instead" is
to provide for structures of government within the M)*#*1 itself. It also obligates the /0P Panel to @conduct and
deliver@ a plebiscite @within twelve 3,! months following the signing of the M)*#*1.@
9?,:
"hird. 2he M)*#*1 creates the Aangsamoro 7omeland as an ancestral domain. 7owever" there is non#compliance
with the procedure laid down under 0* 8o. .?>3" otherwise &nown as the Indigenous Peoples 0ights *ct IP0*!.
2rue" *rticle II" Section ,, of the 35.> %onstitution recogni;es the rights of all indigenous peoples.
9??:
2his" however"
cannot be used in the M)*#*1 as a blan&et authority to claim" without sufficient proof" a territory spanning an entire
geographical region" the entire Mindanao#Sulu#Palawan geographic region.
9?6:
Indeed" %hapter EIII of the IP0* provides for stringent reDuirements and strict process of delineation for recognition of
ancestral domains" thusB
S(%. +3. Delineation and Recognition of .ncestral Domains. # SelfUV_delineation shall be the guiding principle in the
identification and delineation of ancestral domains. *s such" the I%%sIIPs concerned shall have a decisive role in all
the activities pertinent thereto. 2he Sworn Statement of the (lders as to the scope of the territories and
agreementsIpacts made with neighboring I%%sIIPs" if any" will be essential to the determination of these traditional
territories. 2he /overnment shall ta&e the necessary steps to identify lands which the I%%sIIPs concerned traditionally
occupy and guarantee effective protection of their rights of ownership and possession thereto. Measures shall be
ta&en in appropriate cases to safeguard the right of the I%%sIIPs concerned to land which they may no longer be
e'clusively occupied by them" but to which they have traditionally had access for their subsistence and traditional
activities" particularly of I%%sIIPs who are still nomadic andIor shifting cultivators.
S(%. +,. Delineation Process. # 2he identification and delineation of ancestral domains shall be done in accordance
with the following proceduresB
' ' ' '
b! Petition for Delineation. # 2he process of delineating a specific perimeter may be initiated by the 8%IP with the
consent of the I%%IIP concerned" or though a Petition for 1elineation filed with the 8%IP" by a majority of the members
of the I%%sIIPs.
c! Delineation Proper. # 2he official delineation of ancestral domain boundaries including census of all community
members therein" shall be immediately underta&en by the *ncestral 1omains )ffice upon filing of the application by
the I%%sIIPs concerned. 1elineation will be done in coordination with the community concerned and shall at all times
include genuine involvement and participation by the members of the communities concerned.
d! Proof Required. # Proof of *ncestral 1omain %laims shall include the testimony of elders or community under oath"
and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial
120
by such I%%sIIPs in the concept of owners which shall be any one 3! of the following authentic documentsB
3! Written accounts of the I%%sIIPs customs and traditionsJ
,! Written accounts of the I%%sIIPs political structure and institutionJ
?! Pictures showing long term occupation such as those of old improvements" burial grounds" sacred places and old
villagesJ
6! 7istorical accounts" including pacts and agreements concerning boundaries entered into by the I%%sIIPs concerned
with other I%%sIIPsJ
+! Survey plans and s&etch mapsJ
<! *nthropological dataJ
>! /enealogical surveysJ
.! Pictures and descriptive histories of traditional communal forests and hunting groundsJ
5! Pictures and descriptive histories of traditional landmar&s such as mountains" rivers" cree&s" ridges" hills" terraces
and the li&eJ and
3-! Write#ups of names and places derived from the native dialect of the community.
e! Preparation of ,aps. # )n the basis of such investigation and the findings of fact based thereon" the *ncestral
1omains )ffice of the 8%IP shall prepare a perimeter map" complete with technical descriptions" and a description of
the natural features and landmar&s embraced therein.
f! Report of In$estigation and -ther Documents. # * complete copy of the preliminary census and a report of
investigation" shall be prepared by the *ncestral 1omains )ffice of the 8%IP.
g! !otice and Publication. # * copy of each document" including a translation in the native language of the I%%sIIPs
concerned shall be posted in a prominent place therein for at least fifteen 3+! days. * copy of the document shall also
be posted at the local" provincial and regional offices of the 8%IP" and shall be published in a newspaper of general
circulation once a wee& for two ,! consecutive wee&s to allow other claimants to file opposition thereto within fifteen
days 3+! from date of such publicationB Pro$ided" 2hat in areas where no such newspaper e'ist" broadcasting in a
radio station will be a valid substituteJ Pro$ided" further" 2hat mere posting shall be deemed sufficient if both
newspaper and radio station are not available.
h! *ndorsement to !5IP. # Within fifteen 3+! days from publication" and of the inspection process" the *ncestral
1omains )ffice shall prepare a report to the 8%IP endorsing a favorable action upon a claim that is deemed to have
sufficient proof. 7owever" if the proof is deemed insufficient" the *ncestral 1omains )ffice shall reDuire the submission
of additional evidenceJ Pro$ided" 2hat the *ncestral 1omains )ffice shall reject any claim that is deemed patently false
or fraudulent after inspection and verificationB Pro$ided" further" 2hat in case of rejection" the *ncestral 1omains )ffice
shall give the applicant due notice" copy furnished all concerned" containing the grounds for denial. 2he denial shall be
appealable to the 8%IP. Pro$ided" furthermore" 2hat in cases where there are conflicting claims among I%%sIIPs on
the boundaries of ancestral domain claims" the *ncestral 1omains )ffice shall cause the contending parties to meet
and assist them in coming up with a preliminary resolution of the conflict" without prejudice to its full adjudication
according to the Section below.
2he M)*#*1 is problematic when read in conjunction with the IP0* because it does not present any proof or specific
reference that all the territories it enumerates accurately represent the @ancestral domains@ of the Aangsamoro
7omeland. 2he M)*#*1 assumes that these territories are included in the Aangsamoro 7omeland as ancestral
domains" without proof or identification of native title or other claim of ownership to CDD the affected areas.
Section ?g! of the IP0*
9?+:
also reDuires that there be a @free and informed prior consent@ by the indigenous peoples
concerned to be e'ercised through consultations before any decision relating to their ancestral domain is made. 2his
rule not only guarantees the right to information
9?<:
of the people in these areas" but also the right of the indigenous
peoples to @free and informed prior consent@ as an element of due process.
9?>:
)bviously" respondents did not conduct
the reDuired consultation before negotiating the terms of the M)*#*1. )therwise" no petitions and petitions#in#
intervention would have been filed in the first place.
ourth . Knder the M)*#*1" the A=( is vested with jurisdiction" powers and authority over land use" development"
utili;ation" disposition and e'ploitation of natural resources within the Aangsamoro 7omeland.
9?.:
In doing so"
respondents in effect surrendered to the A=( ownership and gave it full control and supervision over the e'ploration"
121
development" utili;ation over the natural resources which belong to the State. 2his is in clear contravention of the
ReGCDAC: "octrA:e now e'pressed under *rticle OII" Section , of the 35.> %onstitution" thusB
*ll lands of the public domain" waters" minerals" coal" petroleum" and other mineral oils" all forces of potential energy"
fisheries" forests or timber" wildlife" flora and fauna" and other natural resources are owned by the State. With the
e'ception of agricultural lands" all other natural resources shall not be alienated. 2he e'ploration" development" and
utili;ation of natural resources shall be under the full control and supervision of the State. 2he State may directly
underta&e such activities" or it may enter into co#production" joint venture" or production#sharing agreements with
Filipino citi;ens" or corporations or associations at least si'ty per centum of whose capital is owned by such citi;ens.
Such agreements may be for a period not e'ceeding twenty#five years" renewable for not more than twenty#five years"
and under such terms and conditions as may be provided by law. In cases of water rights for irrigation" water supply
fisheries" or industrial uses other than the development of water power" beneficial use may be the measure and limit of
the grant.
2he State shall protect the nationCs marine wealth in its archipelagic waters" territorial sea" and e'clusive economic
;one" and reserve its use and enjoyment e'clusively to Filipino citi;ens.
2he %ongress may" by law" allow small#scale utili;ation of natural resources by Filipino citi;ens" as well as cooperative
fish farming" with priority to subsistence fishermen and fish#wor&ers in rivers" la&es" bays" and lagoons.
2he President may enter into agreements with foreign#owned corporations involving either technical or financial
assistance for large#scale e'ploration" development" and utili;ation of minerals" petroleum" and other mineral oils
according to the general terms and conditions provided by law" based on real contributions to the economic growth
and general welfare of the country. In such agreements" the State shall promote the development and use of local
scientific and technical resources.
2he President shall notify the %ongress of every contract entered into in accordance with this provision" within thirty
days from its e'ecution.
ifth . 2he M)*#*1 also grants to the A=( powers to enter into any economic cooperation and trade relations with
foreign countries. It compels the 0epublic of the Philippines to ensure the A=(Cs participation in international meetings
and events" participation in Philippine official missions and delegations engaged in the negotiation of" among others"
border agreements" sharing of incomes and revenues.
9?5:
2hus" by assenting to install an intra sovereign political
subdivision independent of the single sovereign state that is the 0epublic of the Philippines" respondents violated not
only the %onstitution" *rticle E" Section , of 0* 8o. <>?6"
96-:
but also the unitary system of government of the 0epublic
of the Philippines.
Sixth. *rticle 3" Section 3 of the 35.> %onstitution providesB
2he national territory comprises the Philippine archipelago" with all the islands and waters embraced therein" and all
other territories over which the Philippines has sovereignty or jurisdiction" consisting of its terrestrial" fluvial and aerial
domains" including its territorial sea" the seabed" the subsoil" the insular shelves" and other submarine areas. 2he
waters around" between" and connecting the islands of the archipelago" regardless of their breadth and dimensions"
form part of the internal waters of the Philippines.
Without the benefit of any factual determination" the M)*#*1 dismembers parts of Mindanao" turning it into a
geographical dalmatian. It creates a Aangsamoro 7omeland with a specified land mass" maritime" terrestrial" fluvial
and alluvial dominions" with definite internal
963:
and territorial
96,:
waters!" aerial domain" atmospheric space"
96?:
and even
distinct @territorial waters@ within the 0P baselines.
966:
Seventh. 2he M)*#*1 grants to the A=( plenary power to undo e'ecutive acts and delegate to the A=( the authority
to revo&e e'isting proclamations" issuances" policies" rules and guidelines" forest concessions" timber licenses"
contracts or agreements in the utili;ation of natural resources" mining concessions" land tenure instruments.
96+:
T<A?
co:?tAt@te? C: @:F@e FeDeGCtAo: o; e9ec@tAHe =o>er. 2he President may delegate its e'ecutive power only to local
government units or an administrative body attached to the e'ecutive department.
96<:
T<e FeDeGCtAo: o; =o>er to t<e
B'E, o: t<e ot<er <C:F, A? FeDeGCtAo: o; e9ec@tAHe =o>er to C: e:tAreDB FA;;ere:t I@rAFAcCD e:tAtB t<Ct A? :ot
@:Fer At? ?@=erHA?Ao: or co:troD. 2hat is impermissible.
122
Eighth. 2he M)*#*1 empowers the A=( to build" develop" and maintain its own institutions. 2his includes civil
service" electoral" financial and ban&ing institutions" education" legislation" legal" economic" police" internal security
force" and judicial system.
96>:
2his is anathema to several provisions of the %onstitution" namelyB 3! the authority of the
%ommission on (lections to administer all election laws in the PhilippinesJ
96.:
,! that there shall only be one police
force" national in scope to be administered and controlled by the 8ational Police %ommissionJ
965:
?! that the defense of
the 0epublic shall belong e'clusively to the *rmed Forces of the PhilippinesJ
9+-:
6! that judicial power shall be vested
in one Supreme %ourt and in such other inferior courts as may be established by lawJ
9+3:
+! that there shall only be one
independent central monetary authority" the Aang&o Sentral ng PilipinasJ
9+,:
and <! that there shall be one independent
economic planning agency.
9+?:
*ll told" respondents appear to have committed grave abuse
abuse of discretion in negotiating and initialing the M)*#*1.
/rave abuse of discretion has been traditionally understood as
implying such capricious and whimsical e'ercise of judgment
as is eDuivalent to lac& of jurisdiction" or" in other words where
the power is e'ercised in an arbitrary or despotic manner.
9+6:
2he definition has been e'panded because now" grave
abuse of discretion e'ists when there is a contravention of the %onstitution" the law and jurisprudence.
9++:
2egotiate within the #onstitutional bounds
1uring the *merican %ivil War" the Knion had to win the %onfederates and bring them bac& to the fold. It was the
bloodiest war the Knited States ever had. Aut what made the war most pathetic is that it was fought by countrymen"
people who called themselves brothers. With the recent hostilities in the South" I hope the day will not come for a full#
scale civil war in this land we all proudly call 7ome. It is our solemn duty to avert that war.
2he aborted M)*#*1 is a setbac& to the government. Aut the setbac& is only temporary" not a permanent one. 2he
path to peace is long. Aut it can be travelled. )n one hand" the government should be commended in its effort to bring
lasting peace to the South. )n the other hand" it needs to be reminded that any negotiation it enters into" even in the
name of peace" should be within the parameters of the %onstitution.
-HER!ORE" I vote to GRANT the petitions and petitions#in#intervention and to stri&e down the M)*#*1 as
#NCON&TT#TONA$.
93:
2S8" *ugust ,5" ,--." p. 36. @2he ('ecutive 1epartment has decided and 9is: stating for the record that the M)*#
*1 will not be signed in its present form or in any other form.@
9,:
*nne' @*@J %ompliance of the )ffice of the Solicitor /eneral September 3" ,--..
@2he M)* that was originally presented was a step in crafting a final peace agreement. Ay design" any M)* as part of
a final peace agreement undergo a thorough review as part of our constitutional processes since the M)*s will be part
of the enabling law by %ongress and a plebiscite to implement the entire agreement. 2he action by the Supreme %ourt
is consistent with that process. Moving forward" we are committed to securing an agreement that is both constitutional
and eDuitable because that is the only way that long lasting peace can be assured.
@8o matter what the Supreme %ourt ultimately decides t<e GoHer:Ee:t >ADD :ot ?AG: t<e *OA. In light of the recent
violent incidents committed by MILF Lawless /oups" the President has refocused all peace tal&s from one that is
centered on dialogues with rebels to one authentic dialogues with the communities" with 110 as the conte't of our
engagements with all armed groups.@ (mphasis supplied!
123
9?:
0acson $& Perez# /.0. 8o. 36>>.-" May 3-" ,--3" ?+> S%0* >+<J Pro$ince of (atangas $& Romulo# /.0. 8o.
3+,>>6" May ,>" ,--6" 6,5 S%0* >?<J .lba78a $& 5ommission on *lections# /.0. 8o. 3<??-," =uly ,?" ,--6" 6?+
S%0* 5." .cop $& /uingona# )r&# /.0. 8o. 3?6.++" =uly ," ,--," ?.? S%0* +>>J Sanlakas $& *+ecuti$e Secretar"#
/.0. 8o. 3+5-.+" February ?" ,--6" ,>> S%0* 6-5.
96:
/.0. 8os. L#<.?>5#.3" September ,," 35.<" 366 S%0* 356.
9+:
)a$ier $& 5ommission on *lections# id. at 35>#35..
9<:
/.0. 8o. L#+5+,6" February 3." 35.+" 3?6 S%0* 6?..
9>:
Salonga $& 5ruz-Pa78o# id. at 6<?. (mphasis supplied.!
9.:
/.0. 8o. L#?,5+3#," September 3>" 35>3" 63 S%0* 3.
95:
/.0. 8o. L#?3<.+" =uly ?3" 35>+" <+ S%0* <,6.
93-:
/.0. 8o. L#?++6<" September 3>" 35>6" +5 S%0* 3.?.
933:
/.0. 8os. 3>3?5<" 3>36-5" 3>36.+" 3>36.?" 3>36--" 3>36.5 L 3>36,6" May ?" ,--<" 6.5 S%0* 3<-.
93,:
Da$id $& ,acapagal-.rro"o# id. at ,36. (mphasis supplied.!
93?:
/.0. 8o. 3>.5,-" )ctober 3+" ,-->.
936:
Paragraph 3 of the Memorandum of Instructions from the President dated March 3" ,--3 is reiterated in toto in the
Memorandum of Instructions from the President dated September ." ,--?. 0espondent (speron admitted this when
he stated during the oral arguments that @indeed the Memorandum of Instructions was issued on 3 March ,--3 to the
Presidential *dviser" to the %hairman of the Peace 8egotiating Panel thru the Presidential *dviser on the Peace
Process. *nd since then" it has also been revised on September ." ,--? containing the same paragraph one which
reads that the negotiation shall be conducted in accordance with the mandates of the Philippine %onstitution" the 0ule
of Law" and the Principles of Sovereignty and 2erritorial Integrity of the 0epublic of the Philippines.@ 2S8" *ugust 3+"
,--." pp. ?6,#?6?!.
93+:
8oteworthy is the statement of *l 7aj Murad (brahim" the %hairman of the MILF" thusB @It may be beyond the
%onstitution but the %onstitution can be amended and revised to accommodate the agreement. <hat is important is
during the amendment# it will not derogate or water down the agreement because we ha$e worked this out for more
than DG "ears now. visited September ,+" ,--.!. (mphasis supplied!
93<:
%onstitution 35.>!" *rt. OEII" Sec. 3. *ny amendment to" or revision of" this %onstitution may be proposed byB
3. 2he %ongress" upon a vote of three#fourths of all its MembersJ or
,. * constitutional convention.
Sec. ,. *mendments to this %onstitution may li&ewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters" of which every legislative district must be
represented by at least three per centum of the registered voters therein. 8o amendment under this section shall be
authori;ed within five years following the ratification of this %onstitution nor oftener than once every five years
thereafter.
2he %ongress shall provide for the implementation of the e'ercise of this right.
Sec. ?. 2he %ongress may" by a vote of two#thirds of all its Members" call a constitutional convention" or by a majority
124
vote of all its Members" submit to the electorate the Duestion of calling such a convention.
Sec. 6. *ny amendment to" or revision of" this %onstitution under Section 3 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier than si'ty days nor later than ninety days after
the approval of such amendment or revision.
*ny amendment under Section , hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than si'ty days nor later than ninety days after the certification by the %ommission on (lections
of the sufficiency of the petition.
93>:
%onstitution 35.>!" *rt. OEII" Sec. ?. @2he %ongress may" by a vote of two#thirds of all its Members" call a
constitutional convention" or by a majority vote of all its Members" submit to the electorate the Duestion of calling such
a convention.@
93.:
httpBII www.tribune. net.phIheadlinesI,--.-.-<hed,.html visited September ,>" ,--.!.
935:
%onstitution 35.>!" *rticle O" Section 3. @2he territorial and political subdivisions of the 0epublic of the Philippines
are the provinces" cities" municipalities" and barangays. 2here shall be autonomous regions in Muslim Mindanao and
the %ordilleras as hereinafter provided.@
9,-:
Id." Sec. 3+. @2here shall be created autonomous regions in Muslim Mindanao and in the %ordilleras consisting of
provinces" cities" municipalities" and geographical areas sharing common and distinctive historical and cultural
heritage" economic and social structures" and other relevant characteristics within the framewor& of this %onstitution
and the national sovereignty as well as territorial integrity of the 0epublic of the Philippines.@
9,3:
M)*#*1" 2erritory" par. 3. @2he Aangsamoro homeland and historic territory refer to the land mass as well as the
maritime" terrestrial" fluvial and alluvial domains" and the aerial domain" the atmospheric space above it" embracing the
Mindanao#Sulu#Palawan geographic region. ' ' '.@
9,,:
Id." %oncepts and Principles" par. <. @Aoth Parties agree that the Aangsamoro =uridical (ntity A=(! shall have the
authority and jurisdiction over the *ncestral 1omain and *ncestral lands" including both alienable and non#alienable
lands encompassed within their homeland and ancestral territory" as well as the delineation of ancestral domainIlands
of the Aangsamoro people located therein.@
9,?:
Id." 2erritory" par. ,f!. @2he A=( shall have jurisdiction over the management" conservation" development"
protection" utili;ation and disposition of all natural resources" living and non#living" within its internal waters e'tending
fifteen 3+! &ilometers from the coastline of the A=( area.@
9,6:
Id." 2erritory" par. ,g!. @3! 2he territorial waters of the A=( shall stretch beyond the A=( internal waters up to the
0epublic of the Philippines 0P! baselines south east and south west of mainland Mindanao. Aeyond the fifteen 3+!
&ilometers internal waters" the %entral /overnment and the A=( shall e'ercise joint jurisdiction" authority and
management over areas and all natural resources" living and non#living contained therein. 2he details of such
management of the 2erritorial Waters shall be provided in an agreement to be entered into by the Parties.
@,! 2he boundaries of the territorial waters shall stretch beyond the 3+#&m. A=( internal waters up to the %entral
/overnmentCs baselines under e'isting laws. In the southern and eastern part of the A=(" it shall be demarcated by a
line drawn from the Maguling Point" Palimbang" Province of Sultan 4udarat up to the straight baselines of the
Philippines. )n the northwestern part" it shall be demarcated by a line drawn from Little Sta. %ru; Island" Hamboanga
%ity" up to 8aris Point" Aatara;a" Palawan. )n the western part of Palawan" it shall be demarcated by a line drawn
from the boundary of Aatara;a and 0i;al up to the straight baselines of the Philippines.
@2he final demarcation shall be determined by a joint technical body composed of duly#designated representatives of
both Parties" in coordination with the appropriate %entral /overnment agency in accordance with the above
125
guidelines.@
9,+:
Id." /overnance" par. ,.
9,<:
Id." par. ..
9,>:
Id." %oncepts and Principles" par. 6. @Aoth Parties ac&nowledge that the right to self#governance of the Aangsamoro
people is rooted on ancestral territoriality e'ercised originally under the su;erain authority of their sultanates and the
Pat a Pangampong &u 0anaw. 2he Moro sultanates were states or &arajaanI&adatuan resembling a body politic
endowed with all the elements of nation#state in the modern sense. *s a domestic community distinct from the rest of
the national communities" they have a definite historic homeland. 2hey are the @First 8ation@ with defined territory and
with a system of government having entered into treaties of amity and commerce with foreign nations. 2he Parties
concede that the ultimate objective of entrenching the Aangsamoro homeland as a territorial space is to secure their
identity and posterity" to protect their property rights and resources as well as to establish a system of governance
suitable and acceptable to them as a distinct dominant people.
9,.:
Knited 8ations 1eclaration on the 0ights of Indigenous Peoples" *rticle 6< 3! @!othing in this Declaration ma" be
interpreted as implying for any State" people" group or person any right to engage in any activity to perform any act
contrary to the %harter of the Knited 8ations or construed as authorizing or encouraging an" action which would
dismember or impair# totall" or in part# the territorial integrit" or political unit" of so$ereign and independent States.
(mphasis supplied!
9,5:
%onstitution 35.>!" *rt. O" Sec. 3.. @2he %ongress shall enact an organic act for each autonomous region with the
assistance and participation of the regional consultative commission composed of representatives appointed by the
President from a list of nominees from multi#sectoral bodies. 2he organic act shall define the basic structure of
government for the region consisting of the e'ecutive department and legislative assembly" both of which shall be
elective and representative of the constituent political units. 2he organic acts shall li&ewise provide for special courts
with personal" family" and property law jurisdiction consistent with the provisions of this %onstitution and national laws.
@2he creation of the autonomous region shall be effective when approved by majority of the votes cast by the
constituent units in a plebiscite called for the purpose" provided that only provinces" cities" and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region.@
9?-:
Passed on *ugust 3" 35.5. @*n *ct Providing for an )rganic *ct for the *utonomous 0egion in Muslim Mindanao.@
9?3:
Passed on March ?3" ,--3. @*n *ct to Strengthen and ('pand the )rganic *ct for the *utonomous 0egion in
Muslim Mindanao" *mending for the Purpose 0epublic *ct ><?6" (ntitled @*n *ct Providing for the *utonomous
0egion in Muslim Mindanao" *s *mended.@
9?,:
M)*" 2erritory" par. ,d!. @Without derogating from the reDuirements of prior agreements" the /overnment
stipulates to conduct and deliver" using all possible legal measures" within twelve 3,! months following the signing of
the M)*#*1" a plebiscite covering the areas as enumerated in the list and depicted in the map as %ategory *
attached herein the @*nne'@!. 2he *nne' constitutes an integral part of this framewor& agreement. 2oward this end"
the Parties shall endeavour to complete the negotiations and resolve all outstanding issues on the %omprehensive
%ompact within fifteen 3+! months from the signing of the M)*#*1.@
9??:
@2he State recogni;es and promotes the rights of indigenous cultural communities within the framewor& of national
unity and development.@
9?6:
M)*#*1" %oncepts and Principles" par. ,. @It is essential to lay the foundation of the Aangsamoro homeland in
order to address the Aangsamoro peopleCs humanitarian and economic needs as well as their political aspirations.
Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social" cultural
and political identity and pride of all the Aangsamoro people. )wnership of the homeland is vested e'clusively in them
126
by virtue of their prior rights of occupation that had inhered in them as si;eable bodies of people" delimited by their
ancestors since time immemorial" and being the first politically organi;ed dominant occupants.@
Id." par. ?. @Aoth Parties ac&nowledge that ancestral domain does not form part of the public domain but encompasses
ancestral" communal" and customary lands" maritime" fluvial and alluvial domains as well as all natural resources
therein that have inured or vested ancestral rights on the basis of native title. *ncestral domain and ancestral land
refer to those held under claim of ownership" occupied or possessed" by themselves or through the ancestors of the
Aangsamoro people" communally or individually since time immemorial continuously to the present" e'cept when
prevented by war" civil disturbance" force majeure" or other forms of possible usurpation or displacement by force"
deceit" stealth" or as a conseDuence of government project or any other voluntary dealings entered into by the
government and private individuals" corporate entities or institutions.@
9?+:
IP0*" Sec. ?g!. %1ree and Prior Informed 5onsent - as used in this *ct shall mean the consensus of all members of
the I%%sIIPs toJ be determined in accordance with their respective customary laws and practices" free from any
e'ternal manipulation" interference and coercion" and obtained after fully disclosing the intent and scope of the activity"
in a language an process understandable to the community.@
9?<:
%onstitution 35.>!" *rt. ?" Sec. >. @2he right of the people to information on matters of public concern shall be
recogni;ed. *ccess to official records" and to documents and papers pertaining to official acts" transactions" or
decisions" as well as to government research data used as basis for policy development" shall be afforded the citi;en"
subject to such limitations as may be provided by law.@
9?>:
Id." Sec. 3. @8o person shall be deprived of life" liberty" or property without due process of law" nor shall any person
be denied the eDual protection of the laws.@
9?.:
M)*#*1" 0esources" par. 3!. @2he A=( is empowered with authority and responsibility for the land use"
development" conservation and disposition of the natural resources within the homeland. Kpon entrenchment of the
A=(" the land tenure and use of such resources and wealth must reinforce their economic self#sufficiency. *mong the
purposes or measures to ma&e progress more rapid areB
a. (ntry into joint development" utili;ation" and e'ploitation of natural resources designed as commons or shared
resources" which is tied up to the full setting of appropriate institution" particularly affecting strategic mineralsJ
b. Stimulation of local economy by a range of mechanism" in particular the need to address unemployment and
improvement of living conditions for the population in the A=(J
c. Intensification of measures needed to uproot the cause of poverty in the A=( through responsible harnessing and
development of its natural resourcesJ and
d. Knderta&ing program review of public services" industrial or trade#related and agrarian#related issues in situations of
different sectors of the society in the A=(" which acDuire communal character deriving from the special nature of their
industry.
Id." par. ,. @2he Aangsamoro People through their appropriate juridical entity shall" among others" e'ercise power or
authority over the natural resources within its territorial jurisdictionB
a. 2o e'plore" e'ploit" use or utili;e and develop their ancestral domain and ancestral lands within their territorial
jurisdiction" inclusive of their right of occupation" possession" conservation" and e'ploitation of all natural resources
found thereinJ
b. 2o conserve and protect the human and natural environment for their sustainable and beneficial enjoyment and their
posterityJ
c. 2o utili;e" develop" and e'ploit its natural resources found in their ancestral domain or enter into a joint
development" utili;ation" and e'ploitation of natural resources" specifically on strategic minerals" designed as
commons or shared resources" which is tied up to the final setting of appropriate institutionJ
d. 2o revo&e or grant forest concessions" timber license" contracts or agreements in the utili;ation and e'ploitation of
natural resources designated as commons or shared resources" mechanisms for economic cooperation with respect to
strategic minerals" falling within the territorial jurisdiction of the A=(J
e. 2o enact agrarian laws and programs suitable to the special circumstances of the Aangsamoro people prevailing in
their ancestral lands within the established territorial boundaries of the Aangsamoro homeland and ancestral territory
127
within the competence of the A=(J and
f. 2o use such natural resources and wealth to reinforce their economic self#sufficiency.
Id." par. +. @=urisdiction and control over" and the right of e'ploring for" e'ploiting" producing and obtaining all potential
sources of energy" petroleum" in situ" fossil fuel" mineral oil and natural gas" whether onshore or offshore" is vested in
the A=( as the party having control within its territorial jurisdiction" provided that in times of national emergency" when
public interest so reDuires" the %entral /overnment may" during the emergency" for a fi'ed period and under
reasonable terms as may be agreed by both Parties" temporarily assume or direct the operations of such strategic
resources.@
9?5:
M)*#*1" 0esources" par. 6. @2he A=( is free to enter into any economic cooperation and trade relations with
foreign countriesB provided" however" that such relationships and understandings do not include aggression against
the /overnment of the 0epublic of the PhilippinesJ provided" further that it shall remain the duty and obligation of the
%entral /overnment to ta&e charge of e'ternal defense. Without prejudice to the right of the Aangsamoro juridical
entity to enter into agreement and environmental cooperation with any friendly country affecting its jurisdiction" it shall
includeB
a. 2he option to establish and open Aangsamoro trade missions in foreign countries with which it has economic
cooperation agreementsJ and
b. 2he elements bearing in mind the mutual benefits derived from Philippine archipelagic status and security.
*nd" in furtherance thereto" the %entral /overnment shall ta&e necessary steps to ensure the A=(Cs participation in
international meetings and events" e.g." *S(*8 meetings and other speciali;ed agencies of the Knited 8ations. 2his
shall entitle the A=(Cs participation in Philippine official missions and delegations that are engaged in the negotiation of
border agreements or protocols for environmental protection" eDuitable sharing of incomes and revenues" in the areas
of sea" seabed and inland seas or bodies of water adjacent to or between islands forming part of the ancestral domain"
in addition to those of fishing rights.
96-:
0epublic *ct 8o. <>?6" *rt. E" Sec. ,. 2he *utonomous 0egion is a corporate entity with jurisdiction in all matters
devolved to it by the %onstitution and this )rganic *ct as herein enumeratedB
3! *dministrative organi;ationJ
,! %reation of sources of revenuesJ
?! *ncestral domain and natural resourcesJ
6! Personal" family and property relationsJ
+! 0egional" urban and rural planning developmentJ
<! (conomic" social" and tourism developmentJ
>! (ducational policiesJ
.! Preservation and development of the cultural heritageJ
5! Powers" functions and responsibilities now being e'ercised by the departments of the 8ational /overnment e'ceptB
a! Foreign affairsJ
b! 8ational defense and securityJ
c! Postal serviceJ
d! %oinage" and fiscal and monetary policiesJ
e! *dministration of justiceJ
f! PuarantineJ
g! %ustoms and tariffJ
h! %iti;enshipJ
i! 8aturali;ation" immigration and deportationJ
j! /eneral auditing" civil service and electionsJ
&! Foreign tradeJ
l! Maritime" land and air transportation and communications that affect areas outside the *utonomous 0egionJ and
m! Patents" trademar&s" trade names" and copyrightsJ and
3-! Such other matters as may be authori;ed by law for the promotion of the general welfare of the people of the
0egion.
963:
M)*#*1" 2erritory" par. ,f!. @2he A=( shall have jurisdiction over the management" conservation" development"
protection" utili;ation and disposition of all natural resources" living and non#living" within its internal waters e'tending
128
fifteen 3+! &ilometers from the coastline of the A=( area.@
96,:
Id." par. ,g!. @
@3! 2he territorial waters of the A=( shall stretch beyond the A=( internal waters up to the 0epublic of the Philippines
0P! baselines south east and south west of mainland Mindanao. Aeyond the fifteen 3+! &ilometers internal waters"
the %entral /overnment and the A=( shall e'ercise joint jurisdiction" authority and management over areas and all
natural resources" living and non#living contained therein. 2he details of such management of the 2erritorial Waters
shall be provided in an agreement to be entered into by the Parties.
@,! 2he boundaries of the territorial waters shall stretch beyond the 3+#&m. A=( internal waters up to the %entral
/overnmentCs baselines under e'isting laws. In the southern and eastern part of the A=(" it shall be demarcated by a
line drawn from the Maguling Point" Palimbang" Province of Sultan 4udarat up to the straight baselines of the
Philippines. )n the northwestern part" it shall be demarcated by a line drawn from Little Sta. %ru; Island" Hamboanga
%ity" up to 8aris Point" Aatara;a" Palawan. )n the western part of Palawan" it shall be demarcated by a line drawn
from the boundary of Aatara;a and 0i;al up to the straight baselines of the Philippines.
@2he final demarcation shall be determined by a joint technical body composed of duly#designated representatives of
both Parties" in coordination with the appropriate %entral /overnment agency in accordance with the above guidelines
@
96?:
Id." par. 3. @3. 2he Aangsamoro homeland and historic territory refer to the land mass as well as the maritime"
terrestrial" fluvial and alluvial domains" and the aerial domain" the atmospheric space above it" embracing the
Mindanao#Sulu#Palawan geographic region. ' ' '.@
966:
Id." par ,g!. @3! 2he territorial waters of the A=( shall stretch beyond the A=( internal waters up to the 0epublic of
the Philippines 0P! baselines south east and south west of mainland Mindanao. Aeyond the fifteen 3+! &ilometers
internal waters" the %entral /overnment and the A=( shall e'ercise joint jurisdiction" authority and management over
areas and all natural resources" living and non#living contained therein. 2he details of such management of the
2erritorial Waters shall be provided in an agreement to be entered into by the Parties.
@,! 2he boundaries of the territorial waters shall stretch beyond the 3+#&m. A=( internal waters up to the %entral
/overnmentCs baselines under e'isting laws. In the southern and eastern part of the A=(" it shall be demarcated by a
line drawn from the Maguling Point" Palimbang" Province of Sultan 4udarat up to the straight baselines of the
Philippines. )n the northwestern part" it shall be demarcated by a line drawn from Little Sta. %ru; Island" Hamboanga
%ity" up to 8aris Point" Aatara;a" Palawan. )n the western part of Palawan" it shall be demarcated by a line drawn
from the boundary of Aatara;a and 0i;al up to the straight baselines of the Philippines.
@2he final demarcation shall be determined by a joint technical body composed of duly#designated representatives of
both Parties" in coordination with the appropriate %entral /overnment agency in accordance with the above
guidelines.@
96+:
M)*#*1" 0esources" pars. .. @*ll proclamations" issuances" policies" rules and guidelines declaring old growth or
natural forests and all watersheds within the A=( as forest reserves shall continue to remain in force until otherwise
modified" revised or superseded by subseDuent policies" rules and regulations issued by the competent authority
under the A=(.
Id." par. 5. @Forest concessions" timber licenses" contracts or agreements" mining concessions" Mineral Production and
Sharing *greements MPS*!" Industrial Forest Management *greements IFM*!" and other land tenure instruments of
any &ind or nature whatsoever granted by the Philippine /overnment including those issued by the present *0MM
shall continue to operate from the date of formal entrenchment of the A=( unless otherwise e'pired" reviewed"
modified andIor cancelled by the latter.@
129
96<:
8achura" *ntonio A." )utline in Political Law" ,--, ed." p. +3.
96>:
M)*" /overnance" par. .. @2he Parties agree that the A=( shall be empowered to build" develop and maintain its
own institutions" inclusive of" civil service" electoral" financial and ban&ing" education" legislation" legal" economic" and
police and internal security force" judicial system and correctional institutions" necessary for developing a progressive
Aangsamoro society" the details of which shall be discussed in the negotiation of the %omprehensive %ompact.@
96.:
%onstitution 35.>!" *rt. IO%!" Sec. , 3!. @2he %ommission on (lections shall e'ercise the following powers and
functionsB
@3. (nforce and administer all laws and regulations relative to the conduct of an election" plebiscite" initiative"
referendum" and recall.@
965:
Id.# *rt. OEI" Sec. <. @2he State shall establish and maintain one police force" which shall be national in scope and
civilian in character" to be administered and controlled by a national police commission. 2he authority of local
e'ecutives over the police units in their jurisdiction shall be provided by law.@
9+-:
Id." *rt. OEI" Sec. 6. @2he *rmed Forces of the Philippines shall be composed of a citi;en armed force which shall
undergo military training and serve as may be provided by law. It shall &eep a regular force necessary for the security
of the State.@
9+3:
Id." *rt. EIII" Sec. 3. @2he judicial power shall be vested in one Supreme %ourt and in such lower courts as may be
established by law.
@=udicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable" and to determine whether or not there has been a grave abuse of discretion amounting
to lac& or e'cess of jurisdiction on the part of any branch or instrumentality of the /overnment.@
9+,:
Id." *rt. OII" Sec. ,-. @2he %ongress shall establish an independent central monetary authority" the members of
whose governing board must be natural#born Filipino citi;ens" of &nown probity" integrity" and patriotism" the majority of
whom shall come from the private sector. 2hey shall also be subject to such other Dualifications and disabilities as may
be prescribed by law. 2he authority shall provide policy direction in the areas of money" ban&ing" and credit. It shall
have supervision over the operations of ban&s and e'ercise such regulatory powers as may be provided by law over
the operations of finance companies and other institutions performing similar functions.
@Kntil the %ongress otherwise provides" the %entral Aan& of the Philippines operating under e'isting laws" shall
function as the central monetary authority.@
9+?:
Id." *rt. OII" Sec. 5. @2he %ongress may establish an independent economic and planning agency headed by the
President" which shall" after consultations with the appropriate public agencies" various private sectors" and local
government units" recommend to %ongress" and implement continuing integrated and coordinated programs and
policies for national development. Kntil the %ongress provides otherwise" the 8ational (conomic and 1evelopment
*uthority shall function as the independent planning agency of the government.@
9+6:
*sguerra $& 5ourt of .ppeals# /.0. 8o. 335?3-" February ?" 355>" ,<> S%0* ?.-" citing .lafriz $& !oble# >, Phil.
,>." ,.- 3563!J 0eung (en $& -'(rien# ?. Phil. 3., 353.!J Sal$ador 5ampos " 5ia $& Del Rosario# 63 Phil. 6+ 35,-!J
.bad Santos $& Pro$ince of 'arlac# ?. )ff. /a;. .?-J 'a$era 0una# Inc& $& !able# ?. )ff. /a;. <,J San Sebastian
5ollege $& 5ourt of .ppeals# /.0. 8o. .66-3" May 3+" 3553" 35> S%0* 3?.J Sinon $& 5i$il Ser$ice 5ommission# /.0.
8o. 3-3,+3" 8ovember +" 355," ,3+ S%0* 63-J (ustamante $& 5ommission on .udit# /.0. 8o. 3-??-5" 8ovember
,>" 355," ,3< S%0* 3?6" 3?<J >arate $& -legario# /.0. 8o. 5-<++" )ctober >" 355<" ,<? S%0* 3.
9++:
/.0. 8os. 36>-<,#<6" 1ecember 36" ,--3" ?>, S%0* 6<," 65?.
130
" & & E N T N G O P N O N
VE$A&CO, 'R., $.8
It is a well#settled canon of adjudication that an issue assailing the constitutionality of a government act should be
avoided whenever possible.
93:
Put a bit differently" courts will not touch the issue of constitutionality save when the
decision upon the constitutional Duestion is absolutely necessary to the final determination of the case" i&e&# the
constitutionality issue must be the very lis mota of the controversy.
9,:
It is along the line set out above that I e'press my
dissent and vote to dismiss the consolidated petitions and petitions#in#intervention principally see&ing to nullify the
Memorandum of *greement on *ncestral 1omain M)*#*1! =ro=o?eF to be entered into by and between the
/overnment of the 0epublic of the Philippines /0P! and the Moro Islamic Liberation Front MILF!.
No:)'oA:Fer o; *$!8 !CtCD
2he 0ules of %ourt reDuires all actions to be brought by or against the real party interest. 2he reDuirement becomes all
the more necessary with respect to indispensable parties. ForB
Indispensable parties are those with such interest in the controversy that a final decree would necessarily affect their
rights so that courts cannot proceed without their presence. *ll of them must be included in a suit for an action to
prosper or for a final determination to be had.
9?:
*s it were" the MILF was not impleaded in this case e'cept in /.0. 8o. 3.?5<,. Aut it would appear that MILF"
doubtless a real party in interest in this proceedings" was not served a copy of and as&ed to comment on the petition in
/.0. 8o. 3.?5<,. Significantly" when Dueried during the oral arguments on the non#inclusion of the MILF" the
petitioners feebly e'plained that first" they could not implead the MILF because they did not &now where it could be
served with summonsJ and second# they feared that impleading the MILF would be futile as the group does not
ac&nowledge the %ourtCs jurisdiction over it.
2he importance of joining the MILF in this case cannot be over#emphasi;ed. While the non#joinder of an indispensable
party will generally not deprive the court of jurisdiction over the subject matter" the only prejudice to the winning party
being the non#binding effect of the judgment on the unimpleaded party" the situation at bar is different. 7ere" the
unimpleaded party is a party to the proposed M)*#*1 no less and the prospective agreement sought to be annulled
involves )8L$ two parties##the impleaded respondent /0P and the MILF. 2he obvious result is that the %ourt would
not be able to fully adjudicate and legally decide the case without the joinder of the MILF##the other indispensable party
to the agreement. 2he reason is simple. 2he %ourt cannot nullify a prospective agreement which will affect and legally
bind one party without ma&ing said decision binding on the other contracting party. Such e'ercise is not a valid" or at
least an effective" e'ercise of judicial power for it will not peremptorily settle the controversy. It will not" in the normal
course of things" write finis to a dispute.
96:
Such conseDuent legal aberration would be the natural result of the non#
joinder of MILF. * court should always refrain from rendering a decision that will bring about absurdities or will infringe
Section 3" *rticle . of the %onstitution which circumscribes the e'ercise of judicial power.
PreECt@rAtB C:F *oot:e??
2he M)*#*1 is but a proposal on defined consensus points. 2he agreement has remained and will remain a mere
proposal as the /0P has put off its signing permanently.
9+:
2he parties to the M)* do not have" in short" the eDuivalent
of" or what passes as" a perfected and enforceable contract. *s things stand" the line dividing the negotiation stage
and the e'ecution stage which would have otherwise conferred the character of obligatoriness on the agreement is yet
to be crossed. In a very real sense" the M)*#*1 is not a document" as the term is juridically understood" but literally a
piece of paper which the parties cannot loo& up to as an independent source of obligation" the binding prestation to do
or give and the corollary right to e'act compliance. $et" the petitioners would have the %ourt nullify and stri&e down as
unconstitutional what" for all intents and purposes" is a non#e'istent agreement. Li&e a bill after it passes third reading
131
or even awaiting the approval signature of the President" the unsigned draft M)*#*1 cannot plausibly be the subject
of judicial review" the e'ercise of which presupposes that there is before the court an actual case or" in fine" a
justiciable controversy ripe for adjudication. * justiciable controversy involves a definite and concrete dispute touching
on the legal relations of parties who are pitted against each other due to their demanding and conflicting legal
interests.
9<:
*nd a dispute is ripe for adjudication when the act being challenged has had direct adverse effect on the
person challenging it and admits of specific relief through a decree that is conclusive in character. *s aptly observed in
'an $& ,acapagal#
9>:
for a case to be considered ripe for adjudication" it is a prereDuisite that something had been
accomplished by either branch of government before a court may step in. In the concrete" the %ourt could have
entered the picture if the M)*#*1 were signed. For then" and only then" can we say there is a consummated
e'ecutive act to spea& of.
*s opposed to justiciable controversy" academic issues or abstract or feigned problems only call for advices on what
the law would be upon a <B=ot<etAcCD state of facts.
9.:
Were the %ourt to continue entertain and resolve on the merits
these consolidated petitions" the most that it can legally do is to render an advisory opinion"
95:
veritably binding no one"
93-:
but virtually breaching the rule against advisory opinion set out" if not implied in Section 3" *rticle EIII charging
@courts of justice 9the duty: to ?ettDe Cct@CD co:troHer?Ae? involving rights which are legally demandable and
enforceable.@
Prescinding from and anent the foregoing considerations" it can categorically be stated that what the petitions are
pressing on the %ourt are moot and academic Duestions. *n issue or a case becomes moot and academic when it
ceases to present a justiciable controversy so that a determination thereof would be without practical use and value.
933:

In such cases" there is no actual substantial relief to which the petitioner would be entitled to and which would be
negated by the dismissal of the petition.
93,:
2o be sure" the mootness of a case would not" in all instances" prevent the
%ourt from rendering a decision thereon.
93?:
So it was that in a host of cases" we proceeded to render a decision on an
issue otherwise moot and academic. Dela 5amara $& *nage"
936:
/onzales $& ,arcos"
93+:
0acson $& Perez
93<:
.lbania $&
5-,*0*5"
93>:
.cop $& /uingona II
93.:
and Da$id $& ,acapagal-.rro"o#
935:
among other cases" come to mind. Da$id lists
the e'ceptions to the rule on mootness" thusB
2he @moot and academic@ principle is not a magical formula that can automatically dissuade the courts in resolving a
case. %ourts will decide cases" otherwise moot and academic" ifB first" there is a grave violation of the %onstitutionJ
second" the e'ceptional character of the situation and the paramount public interest is involvedJ third" when
constitutional issue raised reDuires formulation of controlling principles to guide the bench" the bar" and the publicJ and
fourth" the case is capable of repetition yet evading review.
* perusal of the cases cited" however" readily reveals that the subject matters thereof involved jusiticiable
controversies. In Dela 5amara" for e'ample" there was the challenged order approving an application for bail bond but
at an e'cessive amount. 2he case was rendered moot by the issuance of a subseDuent order reducing the amount. In
/onzales" the petition Duestioning the validity of the creation of the %%P %omple' by then President Marcos $ia a
e'ecutive order which was viewed as a usurpation of legislative power was mooted by the issuance of a presidential
decree upon the declaration of martial law. In 0acson" assailed was the issuance of Proclamation 8o. ?< declaring a
state rebellionJ in .lbania" the petition to nullify the decision of the %)M(L(% annulling the proclamation of petitioner
as municipal mayor was rendered moot by the election and proclamation of a new set of municipal officersJ in .cop"
the petition to e'clude two police officers from the Witness Protection Program was rendered moot by the fact that the
coverage of the two officers under the program was terminatedJ and in Da$id" the petition challenging the validity of
Presidential Proclamation PP! 3-3> declaring a state of emergency was rendered moot by the issuance of PP 3-,3
declaring that the state of national emergency has ceased.
2he element of justiciable controversy is palpably absent in the petitions at bar. For" as earlier e'plained" there is really
no M)*#*1 to spea& of since its perfection or effectivity was aborted by supervening events" to witB the 20) the %ourt
issued enjoining the 4uala Lumpur signing of the M)* and the subseDuent change of mind of the President not to sign
and pursue the covenant. 2o repeat" there is" from the start" or from the moment the first petition was interposed" no
actual justiciable controversy to be resolved or dismissed" the M)*#*1 having been unsigned. Ae that as it may" there
can hardly be any constitutional issue based on actual facts to be resolved with finality" let alone a grave violation of
the %onstitution to be addressed. Surely the %ourt cannot reasonably formulate guiding and controlling constitutional
principles" precepts" doctrines or rules for future guidance of both bench and bar based on a non#e'isting ancestral
132
domain agreement or by anticipating what the e'ecutive department will li&ely do or agree on in the future in the peace
negotiating table.
Some of my esteemed colleagues in the majority have e'pressed deep concern with the ramifications of a signed
M)*#*1. 8eedless to stress" their apprehension as to such ramifications is highly speculative. 2hus" judicial inDuiry"
assuming for the nonce its propriety" has to come later" again assuming that the peace instrument is eventually
e'ecuted and challenged. *t its present unsigned shape" the M)*#*1 can hardly be the subject of a judicial review.
2he allegations of unconstitutionality are" for now" purely conjectural. 2he M)*#*1 is only a part of a lengthy peace
process that would eventually have culminated in the signing of a %omprehensive %ompact. Per my count" the M)*#
*1 ma&es reference to a %omprehensive %ompact a total of eight times. 2he last paragraph of the M)*#*1 even
ac&nowledges that" before its &ey provisions come into force" there would still be more consultations and deliberations
needed by the parties" $izE
Matters concerning the details of the agreed consensus 9point: on /overnance not covered under this *greement shall
be deferred to" and discussed during" the negotiations of the %omprehensive %ompact.
&e=CrCtAo: o; Po>er? to be G@CrFeF
)ver and above the foregoing considerations" however" is the matter of separation of powers which would li&ely be
disturbed should the %ourt meander into alien territory of the e'ecutive and dictate how the final shape of the peace
agreement with the MILF should loo& li&e. 2he system of separation of powers contemplates the division of the
functions of government into its three ?! branchesB the legislative which is empowered to ma&e lawsJ the e'ecutive
which is reDuired to carry out the lawJ and the judiciary which is charged with interpreting the law.
9,-:
%onseDuent to the
actual delineation of power" each branch of government is entitled to be left alone to discharge its duties as it sees fit.
9,3:
Aeing one such branch" the judiciary" as =ustice Laurel asserted in Planas $& /il"
9,,:
@will neither direct nor restrain
e'ecutive 9or legislative action:.@ ('pressed in another perspective" the system of separated powers is designed to
restrain one branch from inappropriate interference in the business"
9,?:
or intruding upon the central prerogatives"
9,6:
of
another branchJ it is a blend of courtesy and caution" @a self#e'ecuting safeguard against the encroachment or
aggrandi;ement of one branch at the e'pense of the other.@
9,+:
Aut this is what the petitioners basically see&B through
the overruling writs of the %ourt" to enjoin the Philippine Peace 8egotiating Panel" or its eDuivalent" and necessarily the
President" from signing the proposed M)*#*1 and from negotiating and e'ecuting in the future similar agreements.
2he sheer absurdity of the situation where the hands of e'ecutive officials" in their Duest for a lasting and honorable
peace" are sought to be tied lest they agree to something irreconcilable with the %onstitution" should not be lost on the
%ourt.
Knder our constitutional set up" there cannot be any serious dispute that the maintenance of the peace" insuring
domestic tranDuility
9,<:
and the suppression of violence are the domain and responsibility of the e'ecutive.
9,>:
8ow then"
if it be important to restrict the great departments of government to the e'ercise of their appointed powers" it follows" as
a logical corollary" eDually important" that one branch should be left completely independent of the others" independent
not in the sense that the three shall not cooperate in the common end of carrying into effect the purposes of the
constitution" but in the sense that the acts of each shall never be controlled by or subjected to the influence of either of
the branches.
9,.:
Favorably accommodating the petitioners under the premises cannot but be viewed as a indirect attempt on the part of
the %ourt to control and dictate on the peace prerogatives of the e'ecutive branch" and in the process unduly impairing
that branch in the performance of its constitutional duties. It will distort the delicate balance of governance which the
separation of powers see&s to safeguard.
O:e $C?t -orF
2he ('ecutive Secretary has categorically declared that the government will not sign the M)*#*1"
9,5:
which" as
couched" may indeed be constitutionally frail or legally infirm. Aut the more important point is that the challenged
agreement is an unsigned document without effect and force whatsoever. It conveys no right to and imposes no
133
correlative obligation on either negotiating party. *s an unsigned writing" it cannot be declared unconstitutional" as
some of my colleagues are wont to do.
*ccordingly" I vote to "EN% the petitions. 2he factual and legal situations call for this disposition.
93:
.ngara $& *lectoral 5ommission" <? Phil. 3?5 35?<!.
9,:
People $& 9era" <+ Phil. +- 35?>!.
9?:
D(, $& =olonwel 'rading# /.0. 8os. 3>+<-." 3>+<3<" =une ." ,-->.
96:
9alenzuela $& 5ourt of .ppeals" ?<? S%0* >>5J ,etropolitan (ank and 'rust 5o&# $& .lejo" ?<6 S%0* .3, ,--3!.
9+:
Per statement made by Solicitor /eneral *gnes 1evanadera during the )ral *rguments on *ugust ,." ,--..
9<:
/uingona $& 5ourt of .ppeals" /.0. 8o. 3,++?,. =uly 3-" 355." citing cases.
9>:
6? S%0* >>" cited in 1e Leon" Philippine %onstitutional Law" Eol. II" ,--6 ed." p. 6?6.
9.:
/uingona $& 5ourt of .ppeals# /.0. 8o. 3,++?,. =uly 3-" 355." citing %ru;" Philippine Political Law" 35++ ed." pp.
,63#6,J )ohn 6a" People's .lternti$e 5oalition $& 0im" /.0. 8o. 335>>+" )ctober ,6" ,--?.
95:
'iczon $& 9ideo Post ,anila# Inc& /.0. 8o. 3?<?6,. =une 3+" ,---" citing (acolod-,urcia Planters' .ssociation# Inc&
$& (acolod-,urcia ,illing 5o&# Inc&# ?- S%0* <>" <.#<5" )ctober ?3" 35<5.
93-:
See Aernas" 'he DBIA 5onstitution of the Republic of the PhilippinesE . 5ommentar"# 355< (d.
933:
Philippine .irlines $& Pascua" 6-5 S%0* 35+.
93,:
9da& De Da$ao $& 5ourt of .ppeals" 6,< S%0* 53 ,--6!" citing cases.
93?:
'iczon $& 9ideo Post ,anila# Inc&# supra# citing .(S-5(! (roadcasting 5orporation $& 5omelec" /0 8o. 3??6.<"
=anuary ,." ,---J Salonga $& 5ruz-Pano" 3?6 S%0* 6?." February 3." 35.+.!.
936:
63 S%0* 3.
93+:
<+ S%0* <,6.
93<:
?+> S%0* >+<.
93>:
6?+ S%0* 5..
93.:
?.? S%0* +>>" citng 9iola $& .lunan III# FAL S5R. HGD&
935:
/.0. 8os. 3>3?5<" 3>36-5" 3>36.+" 3>36.?" 3>36--" 3>36.5" 3>36,6" May ?" ,--<" 6.5 S%0* 3<-.
9,-:
Alac&Cs Law 1ictionary" <
th
ed." p. 3?-+.
9,3:
'an $& ,acapagal" 6? S%0* <>>.
9,,:
<> Phil. <,.
134
9,?:
2ounstown Sheet ? 'ube 5o& $& Saw"er" ?6? KS +,." <?+ 35+,!.
9,6:
3&S& ,unoz-1lores" 65+ KS ?.+.
9,+:
(uckle" $& 9aleo" 6,6 KS 3.
9,<:
,arcos $& ,anglapus" 3>> S%0* <<..
9,>:
Sec. 3." *rt. EII of the %onstitution charges the President" as %ommnader in %hief of the *rmed Forces of the
Philippines" the duty of preventing or suppressing lawless violence" invasion or rebellion.
9,.:
-'Donaghue $& 3S" ,.5 K.K. +3< 35??!.
9,5:
%ompliance dated September 3" ,--. of respondents.
"&&ENTNG OPNON
NACH#RA, $.8
I respectfully dissent from the ponencia of =ustice %arpio Morales" even as I agree with its holding that the M)*#*1 is
not an international agreement or unilateral declaration binding on the Philippines under international law.
Statement of the #ase
We are confronted with various petitions assailing the constitutionality of the Memorandum of *greement on *ncestral
1omain M)*#*1! between the respondent /overnment of the 0epublic of the Philippines Peace Panel /0P!"
93:
and
the Moro Islamic Liberation Front MILF!"
9,:
to witB
3. a petition for Prohibitionand Mandamus with prayer for the issuance of a Writ of Preliminary Injunction and
2emporary 0estraining )rder 20)! doc&eted as /.0. 8o. 3.?+53" filed by the province of 8orth %otabato
9?:

against respondents /0P" /en. 7ermogenes (speron" =r."
96:
and Secretary (duardo (rmita"
9+:
enjoining this
%ourt toB a! compel respondents to disclose the contents of the M)*#*1" b! prohibit respondents from
formally signing the M)*#*1" or" in the alternative" c! declare the initialed M)*#*1 as unconstitutionalJ
,. a petition for Prohibition and Mandamus with urgent prayer for the issuance of a Writ of Preliminary Injunction
andIor 2emporary 0estraining )rder doc&eted as /.0. 8o. 3.?>+, filed by the %ity /overnment of
Hamboanga" et al&#
9<:
against respondents e'cept Sec. (rmita!" enjoining this %ourt toB a! compel
respondents to disclose the contents of the M)*#*1" b! prohibit respondents from signing the M)*#*1" c!
e'clude the %ity of Hamboanga from being part of the Aangsamoro =uridical (ntity A=(!" subject#matter of
the M)*#*1" or" should the M)*#*1 be signed" d! declare it as null and void.
?. ?. a petition for Injunction andIor 1eclaratory 0elief with prayer for the issuance of a Writ of Preliminary
Injunction andIor 2emporary 0estraining )rder doc&eted as /.0. 8o. 3.?.5? filed by the %ity of Iligan
9>:

against respondents" enjoining this %ourt toB a! enjoin respondents from signing the M)*#*1" or" in the
alternative" from implementing the same" and b! declare the M)*#*1 as unconstitutionalJ
6. a petition for 5ertiorari" Mandamus and Prohibition with prayer for issuance of Writ of Injunction andIor
2emporary 0estraining )rder doc&eted as /.0. 8o. 3.?5+3 filed by provincial government of Hamboanga 1el
8orte"
9.:
0ep. %ecilia =alosjos %arreon"
95:
0ep. %esar /. =alosjos"
93-:
and Seth Frederic& =alosjos" Fernando 0.
%abigon" =r. Kldarico Mejorada II" (dionar Hamoras" (dgar =. Aaguio" %edric *driatico" Feli'berto Aolando"
=oseph Arendo *jero" 8orbideiri (dding" *necito 1arunday" *ngelica %arreon" and Lu;viminda 2orrino
933:

against respondents e'cept Sec. (rmita!" enjoining this %ourt toB a! declare the M)*#*1 as null and void
and without operative effect" and b! restrain respondents from e'ecuting the M)*#*1.
135
+. a petition for Prohibition filed by (rnesto Maceda" =ejomar Ainay" and *Duilino L. Pimentel III against
respondents e'cept /en. (speron and Sec. (rmita! and the MILF Peace 8egotiating Panel"
93,:
enjoining this
%ourt toB a! prohibit and permanently enjoin respondents from formally signing the M)*#*1 or any other
agreement derive therefrom or with terms similar thereto as well as from e'ecuting any of its provisions" and
b! nullify the M)*#*1 for being contrary to the %onstitution and the lawsJ
<. a petition#in#intervention for Prohibition filed by 7on. Marino 0idao and 4isin Au'ani" residents of %otabato
%ity" lodged with the petitions of the Province of %otabato and the %ity of Hamboanga in /.0. 8os. 3.?+53
and 3.?>+," enjoining this %ourt toB a! prohibit respondents from signing the M)*#*1" b! declare the M)*#
*1 as null and void" or" in the alternative" c! e'clude all the thirty#seven ?>! baranga"s of %otabato %ity from
the coverage of the A=( territoryJ
>. a petition#in#intervention for Prohibition" Mandamus and Injunction filed by the Municipality of Linamon"
93?:

enjoining this %ourt toB a! permanently restrain respondents from signing the M)*#*1" or b! permanently
restrain respondents from implementing the initialed M)*#*1" if and when the MILF insists on its
enforcement" and c! declare the M)*#*1 as unconstitutional.
.. a petition#in#intervention for Prohibition filed by the %ity /overnment of Isabela" Aasilan Province"
936:
enjoining
this %ourt toB a! prohibit respondents from signing the M)*#*1" in the alternative" b! declare the M)*#*1
as null and void" and c! e'clude all the forty#five 6+! baranga"s of the %ity of Isabela from the A=( territoryJ
5. a petition#in#intervention for Prohibition filed by the province of Sultan 4udarat"
93+:
enjoining this %ourt toB a!
prohibit respondents from signing the M)*#*1" b! declare the M)*#*1 as null and void" and c! e'clude the
two hundred fourteen ,36! baranga"s of Sultan 4udarat Province from the A=( territoryJ
3-. a petition#in#intervention for Prohibition filed by members of the bar %arlos /ome;" /erardo 1ilig" 8esario
*wat" =oselito *lisuag" and 0ichale; =agmis" all from Puerto Princesa %ity" Palawan" enjoining this %ourt toB
a! prohibit respondents from implementing the M)*#*1 which they had signed with the MILF Peace
8egotiating Panel" in the alternative" b! declare the M)*#*1 as null and void" and c! e'clude the Province
of Palawan and the Municipalities of Aatara;a and Aalabac from the A=( territoryJ
33. a petition#in#intervention for Prohibition filed by 0uy (lias Lope; as a member of the Aagobo tribe of
indigenous people living in Mindanao" enjoining this %ourt toB a! permanently enjoin respondents from
signing the M)*#*1" and" in the alternative" b! declare the M)*#*1 as unenforceable against other
indigenous peoplesJ
3,. a petition#in#intervention for ,andamus and Prohibition filed by Senator Manuel 0o'as" enjoining this %ourt
toB a! direct respondents to publicly reveal or disclose the contents of the M)*#*1" including all documents
pertinent" related" attached thereto" and order respondents to furnish petitioner#in#intervention Sen. 0o'as
with the draft andIor final" complete" official" and initialed copies of said M)*#*1" and b! command
respondents from acting on and signing and implementing the M)*#*1J and
3?. a petition#in#intervention for Prohibition filed by former Senator Fran&lin 1rilon and *tty. *del 2amano"
enjoining this %ourt to prohibit and permanently enjoin respondents from further signing" e'ecuting" and
entering into the M)*#*1 or any other agreement with terms similar to the M)* andIor from proceeding or
implementing the M)*#*1.
2hese cases have been consolidated and jointly heard on oral argument by the %ourt.
In all" the main petitions and the petitions#in#intervention bewail the lac& of public consultation and invo&e violation of
the peopleCs right to information
93<:
in the drafting of the M)*#*1. 2he numerous petitions pray for the following reliefsB
3. 2o prevent the signing of" and" in the alternative" implementation of the initialed" M)*#*1J
,. 2o be furnished copies of the M)*#*1 grounded on their right to information on matters of public concernJ
?. 2o e'clude certain cities and baranga"s from the A=( territoryJ
6. 2o declare the M)*#*1 as unconstitutional riddled as it is with constitutional infirmitiesJ and
+. *s regards Intervenor Lope;" to declare the M)*#*1 unenforceable against indigenous peoples.
"he acts
136
Aefore anything else" however" the difficult facts leading to this cause celebre.
2he advent of the 35.> %onstitution captured and reflected our nationCs Duest for true and lasting peace in Muslim
Mindanao. 2he new constitution included authority for the creation of an *utonomous 0egion of Muslim Mindanao
*0MM!.
93>:
2his trailbla;ing legal framewor& was actually cataly;ed" as early as 35><" with the signing of the 2ripoli
*greement in Libya between the /0P and the M8LF.
)n *ugust 3" 35.5" %ongress passed and approved 0epublic *ct <>?6 entitled @*n *ct Providing for an )rganic *ct
for the *utonomous 0egion in Muslim Mindanao.@ )ut of the thirteen 3?! provinces and nine 5! cities subjected to a
plebiscite conducted on 8ovember 35. 35.5" only four 6! provinces voted for their inclusion in the *0MM" namelyB
Provinces of Maguindanao" Lanao 1el Sur" Sulu and 2awi#2awi.
2hen" on September ," 355<" the almost elusive pursuit of peace appeared to be within reach##the /0P and the M8LF
entered into and signed a total and final peace agreement implementing the 35>< 2ripoli *greement entitled @2he Final
*greement on the Implementation of the 35>< 2ripoli *greement between the /overnment of the 0epublic of the
Philippines and the Moro 8ational Liberation Front.@ %onsistent thereto" on March ?3" ,--3" %ongress amended the
first )rganic *ct 0.*. <>?6! and enacted 0.*. 5-+6 for the e'pansion of the *0MM. 2he plebiscite for the ratification
of the amended )rganic *ct conducted on *ugust 36" ,--3 resulted in the addition of Aasilan Province and Marawi
%ity to the original four 6! provinces comprising the *0MM.
Peace was almost at hand" but not Duite. 2he MILF" a brea&#away faction of the M8LF" wanted a separate peace. It
rejected the final peace agreement between the /0P and the M8LF" and continued their armed hostilities. )nce
again" in the Duest for lasting peace" the /0P initiated peace tal&s with the MILF. )n =uly 3." 355>" the *greement on
the /eneral %essation of 7ostilities was signed between the /0P and the MILF Peace Panels. 8e't" on *ugust ,>"
355." the /eneral Framewor& of *greement of Intent was signed by both parties at the 1awah %enter" %rossing
Simuay" Sultan 4udarat" Maguindanao.
*ll these agreements" notwithstanding" at the end of 3555 to ,---" the MILF fortified its stronghold in forty#si' 6<!
camps" attac&ed a number of municipalities in %entral Mindanao" and too& control of the town hall of 4auswagan"
Lanao 1el 8orte. /overnment responded by twice declaring an @all#out war@ against the MILF. )n *pril ?-" ,---" the
MILF unilaterally suspended the /0P#MILF Peace 2al&s and" li&ewise" declared an all#out war against the /0P and
ordered an all#out offensive on *rmed Forces of the Philippines *FP! camps all over Mindanao. Earious attempts at a
peace settlement were unsuccessful.
)n February ,." ,--3" President *rroyo issued ('ecutive )rder 8o. ? defining the policy and administrative structure
for the governmentCs comprehensive peace effort" in relevant partB
&ectAo: 3. "he "hree &rinciples of the #omprehensive &eace &rocess. 2he comprehensive peace process shall
continue to be governed by the following underlying principlesB
a. * comprehensive peace process should be community#based" reflecting the sentiments" values and
principles important to all Filipinos. 2hus" it shall be defined not by the government alone" nor by the different
contending groups only" but by all Filipinos as one community.
b. * comprehensive peace process aims to forge a new social compact for a just" eDuitable" humane and
pluralistic society. It see&s to establish a genuinely pluralistic society" where all individuals and groups are
free to engage in peaceful competition for predominance of their political programs without fear" through the
e'ercise of rights and liberties guaranteed by the %onstitution" and where they may compete for political
power through an electoral system that is free" fair and honest.
c. * comprehensive peace process see&s a principled and peaceful resolution to the internal armed conflicts"
with neither blame nor surrender" but with dignity for all concerned.
&ectAo: 4. "he Six &aths to &eace. 2he components of the comprehensive peace process comprise the processes
&nown as the @Paths to Peace.@ 2hese components processes are interrelated and not mutually e'clusive" and must
137
therefore be pursued simultaneously in a coordinated and integrated fashion. 2hey shall include" but may not be
limited to" the followingB
a. PK0SKI2 )F S)%I*L" (%)8)MI% *81 P)LI2I%*L 0(F)0MS. 2his component involves the vigorous
implementation of various policies" reforms" programs and projects aimed at addressing the root causes of
internal armed conflicts and social unrest. 2his may reDuire administrative action" new legislation" or even
constitutional amendments.
b. %)8S(8SKS#AKIL1I8/ *81 (MP)W(0M(82 F)0 P(*%(. 2his component includes continuing
consultations on both national and local levels to build consensus for a peace agenda and process" and the
mobili;ation and facilitation of peopleCs participation in the peace process.
c. P(*%(FKL" 8(/)2I*2(1 S(22L(M(82 WI27 27( 1IFF(0(82 0(A(L /0)KPS. 2his component
involves the conduct of face#to#face negotiations to reach peaceful settlement with the different rebel groups.
It also involves the effective implementation of peace agreements.
d. P0)/0*MS F)0 0(%)8%ILI*2I)8" 0(I82(/0*2I)8 I82) M*I8S20(*M S)%I(2$ *81
0(7*AILI2*2I)8. 2his component includes programs to address the legal status and security of former
rebels" as well as community#based assistance programs to address the economic" social and psychological
rehabilitation needs of former rebels" demobili;ed combatants and civilian victims of the internal armed
conflicts.
e. *110(SSI8/ %)8%(08S *0ISI8/ F0)M %)82I8KI8/ *0M(1 7)S2ILI2I(S. 2his component
involves the strict implementation of laws and policy guidelines" and the institution of programs to ensure the
protection of non#combatants and reduce the impact of the armed conflict on communities found in conflict
areas.
f. AKIL1I8/ *81 8K02K0I8/ * %LIM*2( %)81K%IE( 2) P(*%(. 2his component includes peace
advocacy and peace education programs" and the implementation of various confidence#building measures.
In addition thereto" President *rroyo issued Memorandum of Instructions to the /0P Peace Panel providing the
/eneral /uidelines on the Peace 2al&s with the MILF.
)n *pril ?" ,--3" as a conseDuence of the signing of the *greement on the /eneral Framewor& for the 0esumption of
Peace 2al&s between the /0P and the MILF on March ,6" ,--3" in 4uala Lumpur" Malaysia" the MILF suspended all
military actions in their areas of operation.
SubseDuently" two ,! rounds of Formal Peace 2al&s occurred in =une ,-#,," ,--3 and *ugust +#>" ,--3" respectively"
with the latter resulting in the signing of the Implementing /uidelines on the Security *spect of the /0P#MILF 2ripoli
*greement on Peace of ,--3 and effectively placing the parties on a cease#fire status. 2his agreement contained
three ?! strands" specificallyB 3! the Security *spectJ ,! 7umanitarian" 0ehabilitation and 1evelopment *spectsJ and
c! the *ncestral 1omain *spect. *nd as previously stated" 0.*. 5-+6 amending the )rganic *ct was ratified with the
inclusion of Aasilan Province and Marawi %ity in the *0MM.
$et" incidences of violence and violation of the cease#fire pact by the MILF continued to occur. )n =uly 35" ,--?" the
/0P and the MILF once again agreed to a cessation of hostilities and resume peace tal&s. In connection therewith" on
September ," ,--?" President *rroyo issued Memorandum of Instructions to the /0P Peace Panel" i&e&" 0evised
/eneral /uidelines on the Peace 2al&s with the Moro Islamic Liberation Front.
2herefrom" the continuation of several rounds of previously held e'ploratory tal&s was held on =une ,-#,3" ,--+ at
4uala Lumpur" Malaysia and resulted in the forging of clear parameters and principles to be pursued on the
/overnance Strand *spect! of the *ncestral 1omain. 2his was followed by another round of ('ploratory 2al&s on
September 3+#3<" ,--+ also in 4uala Lumpur" Malaysia" where both panels adopted the points on the same
strandIaspect of *ncestral 1omain provided in the Peace *greement of ,--3 between the /0P and the MILF.
2he peace process finally culminated in the drafting of the subject M)*#*1 intended to be signed in 4uala Lumpur"
Malaysia on *ugust +" ,--..
138
8ews report began to appear on the contents of the M)*#*1 and its scheduled signing on *ugust +" ,--.. Main
petitioners" e'cept petitioners in /.0. 8o. 3.?5<," all scrambled to procure a copy of the draft of this M)*#*1. Inability
to secure copies thereof and a categorical response from respondent /0P" prompted the filing of these petitions. )n
the eve of the scheduled signing" by 0esolution dated *ugust 6" ,--." we issued a 2emporary 0estraining )rder
commanding and directing respondents and their agents to cease and desist from formally signing the M)*#*1. We
li&ewise reDuired the )ffice of the Solicitor /eneral )S/! to submit to the %ourt and petitioners the official copy of the
final draft of the M)*#*1. )n *ugust ." ,--." the )S/ filed its %ompliance with our 0esolution.
Meanwhile" outbrea& of violence occurred in some of the herein petitioner local government units. )ral arguments
were held on *ugust 3+" ,," L ,5" ,--.. )n *ugust 35" ,--." the )S/ filed a Manifestation and Motion to 1ismiss the
petitions on the ground that the ('ecutive 1epartment has declared it will thoroughly review M)*#*1 and pursue
further negotiations addressing all objections hurled against said document. 2he )S/Cs motion was greatly opposed
by the petitioners.
)n *ugust ,." ,--." the ('ecutive 1epartment pronounced that it would no longer sign the M)*#*1. )n the last day
of the oral arguments" Madame Solicitor /eneral" on interpellation" declared that the ('ecutive 1epartment"
specifically" respondent Sec. (rmita has declared that the M)*#*1 @will not be signed in this form" or in any other
form.@ Moreover" on September ?" ,--." President *rroyo dissolved the /0P Peace Panel. Finally" in compliance to
the %ourtCs directive upon termination of the oral arguments" the partiesC submitted their respective Memoranda.
Petitioners and petitioners#in#intervention maintain that despite the supervening events and foregoing declarations and
acts of the ('ecutive 1epartment" there remains a justiciable controversy" a conflict of legal rights by the parties that
ought to be adjudicated by this %ourt. 2hey asseverate that" supervening events notwithstanding" the cases at bench
have not been mooted" or" even if so" the issues they raised fall within the e'ceptions to the moot and academic
principle. %onseDuently" even with the dissolution of the /0P Peace Panel and the positive and uneDuivocal
declaration by the ('ecutive 1epartment that the M)*#*1 will not be signed in this form or in any other form" the
constitutionality of the M)*#*1 may still be ruled upon.
*t the other end of the spectrum" however" the )S/ is adamant that this contentious M)*#*1 is" in fact" only a
codification of @consensus points@ and does not" in any way" create rights and obligations that must be declared infirm"
and thus" is not ripe for adjudication by this %ourt. Furthermore" the )S/ insists that the petitions and petitions#in#
intervention must be dismissed on the ground of mootness" supervening events having rendered the assailed M)*#
*1 ine'istent and all the reliefs prayed for satisfied and fulfilled. In addition" the )S/ argues that a ruling by this %ourt
on the constitutionality of the M)*#*1 violates the doctrine of separation of powers as the negotiation of the M)*#*1
is embraced in the PresidentCs powers and in the nature of a political Duestion" outside the pale of judicial review.
"he 'ssues
From the pleadings and as delineated on oral arguments" the issues raised are both procedural and substantive"
namely
3. Procedural
i! Whether petitioners and petitioners#in#intervention have locus standiJ
ii! Whether the petitions and petitions#in#intervention continue to present a justiciable controversy still ripe for
adjudicationJ and
iii! Whether the petitions and petitions#in#intervention have become moot and academic.
,. Substantive
139
i! Whether the M)*#*1 is unconstitutionalJ
ii! Whether the /0P Peace Panel respondents! committed grave abuse of discretion amounting to lac& or
e'cess of jurisdiction when it negotiated and initialed the M)*#*1.
I submit that because of supervening events" the petitions and petitions#in#intervention are no longer ripe for
adjudication and that these cases have been rendered moot and academic. *ccordingly" the petitions should be
dismissed.
I. P0)%(1K0*L
A. Locus Standi
)ur pronouncements in Da$id $& ,acapagal-.rro"o
93.:
are instructiveB
2he difficulty of determining locus standi arises in =@bDAc ?@At?.7ere" the plaintiff who asserts a public right in assailing
an allegedly illegal official action" does so as a representative of the general public. 7e may be a person who is
affected no differently from any other person. 7e could be suing as a stranger" or in the category of a citi;en" or
ta'payer. In either case" he has to adeDuately show that he is entitled to see& judicial protection. In other words" he
has to ma&e out a sufficient interest in the vindication of the public order and the securing of relief as a citi;en or
ta'payer.
' ' ' '
7owever" to prevent just about any person from see&ing judicial interference in any official policy or act with which he
disagreed with" and thus hinders the activities of governmental agencies engaged in public service" the Knited State
Supreme %ourt laid down the more stringent FArect A:I@rB te?t in *+ Parte 0e$itt" later reaffirmed in 'ileston $& 3llman&
2he same %ourt ruled that for a private individual to invo&e the judicial power to determine the validity of an e'ecutive
or legislative action" <e E@?t ?<o> t<Ct <e <C? ?@?tCA:eF C FArect A:I@rB C? C re?@Dt o; t<Ct CctAo:, C:F At A? :ot
?@;;AcAe:t t<Ct <e <C? C Ge:erCD A:tere?t coEEo: to CDD EeEber? o; t<e =@bDAc.
2his %ourt adopted the FArect A:I@rB te?t in our jurisdiction. In People $& 9era" it held that the person who impugns the
validity of a statute must have C =er?o:CD C:F ?@b?tC:tACD A:tere?t A: t<e cC?e ?@c< t<Ct <e <C? ?@?tCA:eF, or >ADD
?@?tCA: FArect A:I@rB C? C re?@Dt. 2he 9era doctrine was upheld in a litany of cases" such as" 5ustodio $& President of
the Senate" ,anila Race 6orse 'rainers .ssociation $& De la 1uente" Pascual $& Secretar" of Public <orks and .nti-
5hinese 0eague of the Philippines $& 1eli+&
7owever" being a mere procedural technicality" the reDuirement of locus standi may be waived by the %ourt in the
e'ercise of its discretion. 2his was done in the 1949 EEerGe:cB Po>er? CC?e?, .raneta $& Dinglasan" where the
trC:?ce:Fe:tCD AE=ortC:ce of the cases prompted the %ourt to act liberally. Such liberality was neither a rarity nor
accidental. In .quino $& 5omelec" this %ourt resolved to pass upon the issues raised due to the ;Cr)reCc<A:G
AE=DAcCtAo:? of the petition notwithstanding its categorical statement that petitioner therein had no personality to file
the suit. Indeed" there is a chain of cases where this liberal policy has been observed" allowing ordinary citi;ens"
members of %ongress" and civic organi;ations to prosecute actions involving the constitutionality or validity of laws"
regulations and rulings.
' ' ' '
Ay way of summary" the following rules may be culled from the cases decided by this %ourt. 2a'payers" voters"
concerned citi;ens" and legislators may be accorded standing to sue" provided that the following reDuirements are metB
3! the cases involve constitutional issuesJ
,! for tC9=CBer?" there must be a claim of illegal disbursement of public funds or that the ta' measure is
unconstitutionalJ
140
?! for Hoter?" there must be a showing of obvious interest in the validity of the election law in DuestionJ
6! for co:cer:eF cAtAMe:?" there must be a showing that the issues raised are of transcendental importance which
must be settled earlyJ and
+! for DeGA?DCtor?" there must be a claim that the official action complained of infringes upon their prerogatives as
legislators.
2he test we have laid down is whether the party has alleged such a personal sta&e in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult Duestions.
935:
When an individual sues as a citi;en" he must allege that he has been
or is about to be subjected to some burdens or penalties by reason of the statute or act complained of.
9,-:
When the
issue concerns a public right" it is sufficient that the petitioner is a citi;en and has an interest in the e'ecution of the
laws.
9,3:
2he petitioners and petitioners#in#intervention claim locus standi with their invocation of the transcendental importance
of the issues involved and their assertion of public rights to information and to consultation.
%onsidering that the %ourt has discretion to rela' this procedural technicality" and given the liberal attitude it has
adopted in a number of earlier case" we ac&nowledge the legal standing of the petitioners herein.
AA. !ipeness for Ad.udication
* mandatory reDuirement for the %ourtCs e'ercise of the power of judicial review is the e'istence of an actual case or
controversy. *n actual case or controversy is a conflict of legal rights" an assertion of opposite legal claims which can
be resolved on the basis of e'isting law and jurisprudence.
9,,:
2he controversy must be definite and concrete" bearing
upon the legal relations of parties who are pitted against each other due to their adverse legal interests.
9,?:
Aut it is not enough that the controversy e'ists at the outset. 2o Dualify for adjudication" it is necessary that the actual
controversy be e'tant at all stages of review" not merely at the time the complaint is filed.
9,6:
2his is to say that the case
is ripe for judicial determination.
In /uingona $& 5ourt of .ppeals"
9,+:
we had occasion to declareB
%losely related to the reDuirement of @actual case"@ Aernas continues" is the second reDuirement that the Duestion is
@ripe@ for adjudication. * Duestion is ripe for adjudication when the act being challenged has had a direct adverse effect
on the individual challenging it. 2hus" in P.53 $& Secretar" of *ducation" the %ourt declined to pass judgment on the
Duestion of the validity of Section ? of *ct 8o. ,>-<" which provided that a private school may be opened to the public"
it must first obtain a permit from the secretary of education" because all the petitioning schools had permits to operate
and were actuall" operating# and none of them claimed that the secretar" had threatened to re$oke their permit.
In 'an $& ,acapagal" the %ourt said that Petitioner /on;ales @had the good sense to wait@ until after the enactment of
the statute 90ep. *ct 8o. 653?35<>!: reDuiring the submission to the electorate of certain proposed amendments to
the %onstitution 90esolution 8os. 3 and ? of %ongress as a constituent body 35<>!: before he could file his suit. It was
only when this condition was met that the matter became ripe for adjudicationJ prior to that stage" the judiciary had to
&eep its hands off.
2he doctrine of separation of powers calls for each branch of government to be left alone to discharge its duties as it
sees fit. Aeing one such branch" the judiciary" =ustice Laurel asserted" @will neither direct nor restrain e'ecutive 9or
legislative action: ' ' '.@ 2he legislative and the e'ecutive branches are not allowed to see& advice on what to do or
not to doJ thus" judicial inDuiry has to be postponed in the meantime. Aefore a court may enter the picture" a
prereDuisite is that something has been accomplished or performed by either branch. 2hen ma" it pass on the validity
of what has been done but" then again" only @when ' ' ' properly challenged in an appropriate legal proceeding.@
In the case at bench" there is no gainsaying that at the time of the filing of the initial petitions up to the issuance by this
141
%ourt of the 2emporary 0estraining )rder" there was an actual e'tant controversy. 2he signing of the M)*#*1 in
Malaysia had been scheduledJ several foreign dignitaries were invited to grace the ceremony. 2he timeliness of the
e'ercise of power by the %ourt may have prevented a possible constitutional transgression. It was so timely an
e'ercise of judicial review over an actual controversy by the %ourt such that it may have provided the impetus
sufficient for the ('ecutive 1epartment to @review@ its own acts" and to decided" subseDuently" to abort the entire M)*#
*1.
7owever" supervening events effectively eliminated the conflict of rights and opposite legal claims. 2here is no longer
an actual case or controversy between the parties. 2he /0P Peace Panel" respondents in these consolidated cases"
has been disbanded by the President" along with the resounding declaration that @the M)*#*1 will not be signed in its
present form" or in any other form.@ 2he Memorandum issued by ('ecutive Secretary (rmita to the Solicitor /eneral is
uneDuivocalB @8o matter what the Supreme %ourt ultimately decides" the government will not sign the M)*.@
2he subseDuent events were sufficient to alter the course of these judicial proceedings. 2he PresidentCs decision not to
sign the M)*#*1 may even be interpreted as a rectification of flawed peace negotiations by the panel. Aut to this
%ourt" it is clearly a supervening event that affects the ripeness of the case for adjudication. With an abandoned and
unsigned M)*#*1 and a dissolved peace Panel" any purported controversy has virtually disappeared. =udicial review
cannot be e'ercised where the incipient actual controversy does not remain e'tant until the termination of the caseJ
this %ourt cannot provide reliefs for controversies that are no longer there.
*fter the mandamus aspect of the initial petitions had been satisfied" what remains are basically the petitions for
certiorari and prohibition.
9,<:
2he reliefs prayed for include the declaration of nullity of the M)*#*1 and the prohibition
on the members of the Peace Panel from signing the M)*#*1.
2hese reliefs are unavailing" because the peace Panel has been dissolved and" by the nature of things" rendered
permanently unable to sign any agreement. )n the other hand" the M)*#*1 sought to be nullified does not confer any
rights nor imposes any duties. It is" as of today" non#e'istent.
In ,ontesclaros $& 5-,*0*5"
9,>:
we held that a proposed bill is not subject to judicial review" because it is not a law. *
proposed bill creates no right and imposes no duty legally enforceable by the %ourt. * proposed bill having no legal
effect violates no constitutional right or duty. 2he %ourt has no power to declare a proposed bill constitutional or
unconstitutional because that would be in the nature of rendering an advisory opinion on a proposed act of %ongress.
2his ruling finds a parallel in a proposed agreement to be entered into by the ('ecutive 1epartment which has been
aborted" unsigned" and @will not be signed in its present form or in any other form.@
AAA. 3ootness
* moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events" so
that a declaration thereon would be of no practical value. /enerally" courts decline jurisdiction over such case" or
dismiss it on ground of mootness.
9,.:
2hus" in /onzales $& !ar$asa"
9,5:
where the constitutionality of the creation of the Preparatory %ommission on
%onstitutional 0eform P%%0! was Duestioned" the %ourt dismissed the petition because by then" the P%%0 had
ceased to e'ist" having finished its wor& and having submitted its recommendations to then President (strada. In
.bbas $& 5-,*0*5"
9?-:
we refused to rule on a perceived potential conflict between provisions of the Muslim %ode
and those of the national law.
7owever" it is a'iomatic that courts will decide cases" otherwise moot and academic" ifB first" there is a grave violation
of the %onstitutionJ second" the e'ceptional character of the situation and the paramount public interest involvedJ third"
when the constitutional issue raised reDuires formulation of controlling principles to guide the bench" the bar and the
publicJ or fourth" when the case is capable of repetition yet evasive of review.
9?3:
*s to the first e'ception" there is no violation of the %onstitution that will justify judicial review despite mootness"
142
because the M)*#*1 has not been signed # and will not be signed. 2he eminent =ustice *ntonio 2. %arpio" in his
separate opinion" even as he e'pressed fears of numerous @drastic changes@ in the %onstitution" ac&nowledges that
these will ta&e place only IF the M)*#*1 will be signed. 2he scholarly ponencia concludes with the finding that the
M)*#*1 is unconstitutional" obviously referring to its provisions. So does the separate opinion of =ustice 0uben 2.
0eyes. Aut" to repeat" the M)*#*1 is" as of today" non#e'istent. 2hus" as it is" these dreaded constitutional infractions
are" at best" anticipatory" hypothetical or conjectural.
8either will the second e'ception apply. 2he issue of paramount public interest will arise only IF the M)*#*1 is
signed. With the Peace Panel dissolved" and with the uneDuivocal pronouncement of the President that the M)*#*1
will not be signed" there is no occasion to spea& of the e'ceptional or e'traordinary character of the controversy as
would render the case ripe for resolution and susceptible of judicial determination.
/iven the events that led to the issuance by the %ourt of a 20) in order to stop the signing of the M)*#*1 in Malaysia
on *ugust +" ,--." it would appear that there is a need for the %ourt to formulate controlling principles" precepts and
rules to guide the bench" the bar and the public # particularly a peace negotiating panel # in future peace tal&s.
7owever" a scrutiny of the factual antecedents of this case reveals that no such imperative e'ists.
It is well to note that ('ecutive )rder 8o. ?" which created the /0P Peace Panel" e'plicitly identifies the %onstitution
as the basic legal framewor& for the peace negotiations. It states that the /0P Peace Panel was created with the
primary objective to attain @a just# comprehensi$e and enduring peace under a rule of law and in accordance with
constitutional processes"@
9?,:
with @a need to further enhance the contribution of ci$il societ" to the comprehensi$e
peace process b" institutionalizing the people's participation.@
9??:
2he same ('ecutive )rder provides sufficient
standards to guide the /0P Peace Panel in the performance of its avowed wor&.
2hen" there is the March 3" ,--3 Memorandum of Instructions from the President" followed by the Memorandum of
Instructions dated September ." ,--?. %ommon to the instructions is the provision that the negotiation shall be
conducted @in accordance with the mandate of the 5onstitution# the Rule of 0aw# and the Principles of So$ereignt" and
'erritorial Integrit" of the Republic of the Philippines.@ 2hese are adeDuate guidelines for the /0P Peace panelJ it
would be superfluous for the %ourt to issue guidelines which" presumably" will be similar to the ones already in
e'istence" aside from possibly trenching on the constitutional principle of separation of powers.
If the respondents#members of the /0P Peace Panel" in the conduct of the negotiation" breached these standards or
failed to heed the instructions" it was not for lac& of guidelines. In any event" the /0P Peace Panel is now disbanded"
and the M)*#*1 unsigned and @not to be signed.@ 2here is no necessity for this %ourt to issue its own guidelines as
these would be" in all probability" repetitive of the e'ecutive issuances.
2he fourth e'ception" that the issue is @capable of repetition "et e$asi$e of re$iew"@ is li&ewise inapplicable in this case.
In this connection" we recall Sanlakas $& Re"es"
9?6:
where the %ourt dismissed the petitions which assailed as
unconstitutional Proclamation 8o. 6,>" declaring a state of rebellion" and /eneral )rder 8o. 6" after the President had
issued Proclamation no. 6?+ declaring that the state of rebellion had ceased to e'ist.
*part from the brilliant ponencia of =ustice 1ante ). 2inga" particularly illuminating is the separate opinion of %hief
=ustice *rtemio E. Panganiban when he wroteB
While the Petitions herein have previously embodied a live case or controversy" they now have been rendered e'tinct
by the lifting of the Duestioned issuances. 2hus" nothing is gained b" breathing life into a dead issue&
Moreover" without a justiciable controversy" the Petitions have become pleas for declaratory relief" over which the
Supreme %ourt has no original jurisdiction. Ae it remembered that they were filed directly with this %ourt and thus
invo&ed its original jurisdiction.
)n the theory that the @state of rebellion@ issue is @capable of repetition yet evading review"@ I respectfully submit that
the Duestion may indeed still be resolved even after the lifting of the Proclamation and )rder" =roHAFeF t<e =CrtB
rCA?A:G At A: C =ro=er cC?e <C? bee: C:F(or co:tA:@e to be =reI@FAceF or FCECGeF C? C FArect re?@Dt o; t<eAr
143
A??@C:ce.
In the present case" petitioners have not shown that they have been or continue to be directly and pecuniarily
prejudiced or damaged by the Proclamation and )rder. 8either have they shown that this %ourt has original
jurisdiction over petitions for declaratory relief. I would venture to say that" perhaps" if this controversy had emanated
from an appealed judgment from a lower tribunal" then this %ourt may still pass upon the issue on the theory that it is
@capable of repetition yet evading review"@ and the case would not be an original action for declaratory relief.
: ?<ort, t<e t<eorB o; JcC=CbDe o; re=etAtAo: Bet eHCFA:G reHAe>J ECB be A:HoLeF o:DB ><e: t<A? Co@rt <C?
I@rA?FActAo: oHer t<e ?@bIect ECtter. t cC::ot be @?eF A: t<e =re?e:t co:troHer?B ;or FecDCrCtorB reDAe;, oHer
><Ac< t<e Co@rt <C? :o original I@rA?FActAo:.
/iven the similar factual milieu in the case at bench" I submit that judicial review of the instant controversy cannot be
justified on the principle that the issue is @capable of repetition yet evasive of review.@
II. SKAS2*82IE(
I respectfully submit that the %ourt should view this case from the perspective of e'ecutive power" and how it was
actually e'ercised in the formulation of the /0P Peace Panel until the challenged M)*#*1 was crafted in its present
abandoned form.
2he President is the %hief ('ecutive of the 0epublic and the %ommander#in#%hief of the armed forces of the
Philippines.
Section 3" *rticle EII of the Philippine %onstitution providesB @'he e+ecuti$e power shall be $ested in the President of
the Philippines.@ *dditionally" Section 3." *rticle EII" statesB
Sec. 3.. 2he President shall be the %ommander#in#%hief of all armed forces of the Philippines and whenever it
becomes necessary" he may call out such armed forces to prevent or suppress lawless violence" invasion or rebellion.
In case of invasion or rebellion" when the public safety reDuires it" he may" for a period not e'ceeding si'ty days"
suspend the privilege pf the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty#eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus"
the President shall submit a report in person or in writing to the %ongress. 2he %ongress" voting jointly" by a vote of at
least a majority of all its Members in regular or special session" may revo&e such proclamation or suspension which
revocation shall not be set aside by the President. Kpon the initiative of the President" the %ongress may" in the same
manner" e'tend such proclamation or suspension for a period to be determined by the %ongress" if the invasion or
rebellion shall persist and public safety reDuires it.
In Sanlakas $& Re"es"
9?+:
we held that the above provision grants the President" as %ommander#in#%hief" a seDuence of
graduated powers" to witB 3! the calling out power" ,! the power to suspend the privilege of the writ of habeas corpus"
and ?! the power to declare martial law. 2husB
In the e'ercise of the latter two powers" the %onstitution reDuires the concurrence of two conditions" namely" an actual
invasion or rebellion" and that public safety reDuires the e'ercise of such power. 7owever" as we observed in
Integrated (ar of the Philippines $& >amora" @9t:hese conditions are not reDuired in the e'ercise of the calling out
power. 2he only criterion is that Mwhenever it becomes necessary"C the President may call the armed forces Mto prevent
or suppress lawless violence" invasion or rebellion.C@
Implicit in these is the PresidentCs power to maintain peace and order. In fact" in the seminal case of ,arcos $&
,anglapus"
9?<:
we ruledB
92:his case calls for the e'ercise of the PresidentCs powers as protector of the peace. 2he power of the President to
&eep the peace is not limited merely to e'ercising the commander#in#chief powers in times of emergency or to leading
the State against e'ternal and internal threats to its e'istence. 2he President is not only clothed with e'traordinary
powers in times of emergency" but is also tas&ed with e'traordinary powers in times of emergency" but is also tas&ed
with attending to the day#to#day problems of maintaining peace and order and ensuring domestic tranDuility in times
when no foreign foe appears on the hori;on. Wide discretion" within the bounds of law" in fulfilling presidential duties in
times of peace is not in any way diminished by the relative want of an emergency specified in the commander#in#chief
provision. For in ma&ing the President commander#in#chief the enumeration of powers that follow cannot be said to
144
e'clude the PresidentCs e'ercising as %ommander#in#%hief powers short of the calling of the armed forces" or
suspending the privilege of the writ of habeas corpus or declaring martial law" in order to &eep the peace" and maintain
public order and security.
Kndoubtedly" then" the President has power to negotiate peace with the MILF" and to determine in what form and
manner the peace process should be conducted.
In the e'ercise of this power" the President issued ('ecutive )rder 8o. ?" where she mapped out the principles to be
followed in the comprehensive peace processB a! community#based and defined by all Filipinos as one community" b!
a new social compact establishing a genuinely pluralistic society" and c! a principled and peaceful resolution to the
internal armed conflicts.
9?>:
In Section 6 thereof" the president identified the < paths to peace" with processes being
interrelated and not mutually e'clusive" and must be pursued simultaneously in a coordinated and integrated fashionB
a! pursuit of social" economic and political reforms" b! consensus#building and empowerment for peace" c! peaceful"
negotiated settlement with the different rebel groups" d! programs for the reconciliation" reintegration into mainstream
society and rehabilitation" e! addressing concerns arising from continuing armed hostilities" and f! building and
nurturing a climate conducive to peace.
('ecutive )rder 8o. ?" together with the Memorandum of Instructions of March 3" ,--3 and the Memorandum of
Instructions of September ." ,--?" constitutes the mandate of the /0P Peace panel. It was within the parameters of
this mandate that the /0P Peace panel was to negotiate with the MILF and arrive at a %omprehensive Peace
*greement. It was pursuant to these strictures that the M)*#*1 was crafted" initialed and scheduled for signing.
(ven as the petitioners and petitioners#in#intervention roundly condemn the M)*#*1" as currently worded" to have
violated constitutional and statutory principles # and assail the /0P Peace Panel for having acted with grave abuse of
discretion because of its failure to abide by its mandate # it is noteworthy they do not raise any Duestion about the
validity of ('ecutive )rder 8o. ? and the Instructions issued by the President.
%onsidering the events that have supervened since the filing of the initial petition and the issuance by this %ourt of a
20)" it is suggested that the angle of vision for the discussion of the substantive issues in this case should be from the
perspective of the reliefIs that this %ourt can grant the parties" ta&ing into account their respective prayers. 2hese areB
3. Mandamus.
a! 2hree petitions and two petitions#in#intervention praying for a writ of mandamus" to compel the production of the
official copy of the M)*#*1" the petitioners invo&ing their right to information. 2hese petitions are now mooted"
because the reDuested documents have already been produced.
b! 2wo respondents#intervenors who pray that the ('ecutive 1epartment be directed to sign the M)*#*1 and to
continue with the peace negotiations. With the definite pronouncement of the President that the M)*#*1 will not be
signed in its present form or in any other form" this prayer cannot be granted" because the %ourt cannot compel a party
to enter into an agreement.
,. 1eclaratory 0elief. # )ne petition for declaratory relief which may not be granted because the %ourt has no original
jurisdiction over petitions for declaratory relief.
9?.:
?. 5ertiorari and Prohibition. )ne petition for certiorari and twelve petitions for prohibition" including the petitions#in#
intervention" see& a declaration of nullity of the M)*#*1 for being unconstitutional!" a writ of certiorari against the
members of the /0P Peace Panel for having acted with grave abuse of discretion" and a writ of prohibition to prevent
the signing of the M)*#*1.
2hereCs the rub. Aecause the M)*#*1 will not be signed @in its present form" or in any other form"@ certiorari will not lie.
2he %ourt cannot review an ine'istent agreement" an unborn contract that does not purport to create rights or impose
duties that are legally demandable. 8either will the remedy of prohibition lie against a /0P Peace Panel that no longer
e'ists. 'o do so would be to flog a dead horse&
2he ponencia would wish to get around this inescapable truth by sayingB @'he ,-.-.D not being a document that can
145
bind the Philippines under international law notwithstanding# respondents' almost consummated act of guaranteeing
amendments to the legal framework is# b" itself# sufficient to constitute gra$e abuse of discretion&@
With due respect" I beg to disagree. /rave abuse of discretion can characteri;e only consummated acts or
omissions!" not an @almost but not Duite! consummated act.@
%hief =ustice Panganiban" in his separate opinion in Sanlakas" writesB @'he first requirement# the e+istence of a li$e
case or contro$ers"# means that the e+isting litigation is ripe for resolution and susceptible of judicial determination# as
opposed to one that is conjectural or anticipator"# h"pothetical or feigned&@
It is not the province of this %ourt to assume facts that do not e'ist.
It is for the foregoing reasons that I respectfully register my dissent. I vote to "EN% the petitions.
93:
0epresented by Secretary 0odolfo /arcia" *tty. Leah *rmamento" *tty. Sedfrey %andelaria" 0yan Mar& Sullivan.
9,:
Area&away group of the Moro 8ational Liberation Front.
9?:
0epresented by /overnor =esus Sacdalan andIor Eice#/overnor (mmanuel PiFGol" for and in his own behalf.
96:
In his capacity as Presidential *dviser on the Peace Process.
9+:
In his capacity as ('ecutive Secretary.
9<:
0epresented by the %ity Mayor of Hamboanga" %elso Lobregat. )ther petitioners are 0ep. Isabelle %limaco" 1istrict
3 of Hamboanga %ity and 0ep. (rico Aasilio *. Fabian" 1istrict ," %ity of Hamboanga.
9>:
0epresented by %ity Mayor Lawrence Lluch %ru;.
9.:
0epresented by /ov. 0olando (. $ebes and Eice#/overnor Francis 7. )lvis.
95:
3
st
%ongressional 1istrict.
93-:
?
rd
%ongressional 1istrict.
933:
Members of the Sangguniang Panlalawigan of Hamboanga del 8orte Province.
93,:
0epresented by its %hairman Mohagher IDbal.
93?:
0epresented by Mayor 8oel 1eano.
936:
0epresented by Mayor %herrylyn Santos#*&bar.
93+:
0epresented by /ov. Suharto Mangudadatu.
93<:
*rticle III" Section > of the %onstitutionB
Sec. >. 2he right of the people to information on matters of public concern shall be recogni;ed. *ccess to official
records and to documents and papers pertaining to official acts" transactions" or decisions" as well as government
research data used as basis for policy development shall be afforded the citi;en" subject to such limitations as may be
provided by law.
146
93>:
*rticle O" Sections 3+" 3. and 35 of the %onstitutionB
Sec. 3+. 2here shall be created autonomous regions in Muslim Mindanao and in the %ordilleras consisting of
provinces" cities" municipalities" and geographical areas sharing common and distinctive historical and cultural
heritage" economic and social structures" and other relevant characteristics within the framewor& of this %onstitution
and the national sovereignty and territorial integrity of the 0epublic of the Philippines.
Sec. 3.. 2he %ongress shall enact an organic act for each autonomous region with the assistance and participation of
the regional consultative commission composed of representatives appointed by the President from a list of nominees
from multi#sectoral bodies. 2he organic act shall define the basic structure of the government for the region consisting
of the e'ecutive department and legislative assembly" both of which shall be elective and representative of the
constituent political units. 2he organic act shall li&ewise provide for special courts with personal" family and property
law jurisdiction consistent with the provisions of this %onstitution and national laws.
2he creation of the autonomous region shall be effective when approved by majority of the votes cast by the
constituent units in a plebiscite called for the purpose" provided that only provinces" cities" and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region.
Sec. 35. 2he first %ongress elected under this %onstitution shall" within eighteen months from the time of organi;ation
of both 7ouses" pass the organic acts for the autonomous regions in Muslim Mindanao and the %ordilleras.
93.:
/.0. 8o. 3>3?5<" May ?" ,--<" 6.5 S%0* 3<-.
935:
Pro$ince of (atangas $& Romulo" /.0. 8o. 3+,>>," May ,>" ,--6.
9,-:
1rancisco $& 6ouse of Representati$es" 6<- Phil. .?-" .5< ,--?!.
9,3:
Supra note 3..
9,,:
/uingona $& 5ourt of .ppeals" /.0. 8o. 3,++?," =uly 3-" 355..
9,?:
)ohn 6a" People's .lternati$e 5oalition $& 0im" /.0. 8o. 335>>+" )ctober ,6" ,--?.
9,6:
Da$is $& 1ederal *lection 5ommission" 3,. S. %t. ,>+5 ,--.!" citing .rizonians for -fficial *nglish $& .rizona" 33>
S. %t. 3-++.
9,+:
Supra note ,,.
9,<:
2he records show pleadings filed by two 0espondents#in#Intervention" namelyB the Muslim Legal *ssistance
Foundation" inc. and the %onsortium of Aangsamoro %ivil Society" represented by its %hairman /uiamel M. *lim" and
Aangsamoro Women Solidarity Forum" represented by its %hair 2arhata M. Maglangit. In their respective
memorandum" these two intervenors uniformly pray for the lifting of the temporary restraining order issued by this
%ourt" and to reDuire the ('ecutive 1epartment to fulfill its obligation under the M)*#*1 and continue with the peace
tal&s with the MILF with the view of forging a %omprehensive %ompact.
9,>:
/.0. 8o. 3+,,5+" =uly 5" ,--,.
9,.:
Da$id $& ,acapagal-.rro"o" supra note 3..
9,5:
/.0. 8o. 36-<?+" *ugust 36" ,---.
9?-:
/.0. 8o. .5<+3" 8ovember 3-" 35.5" 3>5 S%0* ,.>.
147
9?3:
Da$id $& ,acapagal-.rro"o" supra note 3..
9?,:
3
st
W7(0(*S clause" (.). 8o. ?.
9??:
Last W7(0(*S clause" (.) 8o. ?.
9?6:
/.0. 8o. 3+5-.+" February ?" ,--6" 6,3 S%0* <+<.
9?+:
Supra note ?6.
9?<:
/.0. 8o. ..,33" September 3+" 35.5" 3>> S%0* <<..
9?>:
Section ?" (.). 8o. ?.
9?.:
Panganiban" Separate )pinion" Sanlakas $& Re"es" supra note ?6.
(#Library 1oc. I1B 3,,66<+<<5?66,3+?<,
148