G.R. No. 183591 October
14 2008
Province of North Cotabato vs Government of the Republic of
the Philippines
FACTS:
On August 5, 2008, the Government of the Republic of the
Philippines and the Moro Islamic Liberation Front (MILF) were scheduled to sign
a Memorandum of Agreement of the Ancestral Domain Aspect of the GRP - MILF
Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public
concern, the petitioners seek to compel respondents to disclose and furnish
them the complete and official copies of the MA-AD and to prohibit the slated
signing of the MOA-AD and the holding of public consultation thereon. They also
pray that the MOA-AD be declared unconstitutional. The Court issued a TRO
enjoining the GRP from signing the same.
ISSUES:
1. Whether or not the constitutionality and the legality of
the MOA is ripe for adjudication;
2. Whether or not there is a violation of the people's right
to information on matters of public concern (Art 3 Sec. 7) under a state policy
of full disclosure of all its transactions involving public interest (Art 2,
Sec 28) including public consultation under RA 7160 (Local Government Code of
1991)
3. Whether or not the signing of the MOA, the Government of
the Republic of the Philippines would be binding itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not
recognized by law;
b) to revise or amend the Constitution and existing laws to conform to
the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation
Front for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF
ANCESTRAL DOMAINS)
RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure
of the respondents to consult the local government units or communities
affected constitutes a departure by respondents from their mandate under EO No.
3. Moreover, the respondents exceeded their authority by the mere act of
guaranteeing amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter for judicial
review.
As the petitions involve constitutional issues which are of
paramount public interest or of transcendental importance, the Court grants the
petitioners, petitioners-in-intervention and intervening respondents the
requisite locus standi in keeping with the liberal stance adopted in David v.
Macapagal- Arroyo.
In Pimentel, Jr. v. Aguirre, this Court held:
x x x [B]y the mere enactment of the questioned 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 Constitution and/or the law is enough to awaken
judicial duty.x x x x
By the same token, when an act of the President, who in our constitutional
scheme is a coequal of Congress, is seriously alleged to have infringed the
Constitution and the laws x x x settling the dispute becomes the duty and the
responsibility of the courts.
That the law or act in question is not yet effective does
not negate ripeness.
2. Yes. The Court finds that there is a grave violation of
the Constitution involved in the matters of public concern (Sec 7 Art III)
under a state policy of full disclosure of all its transactions involving
public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local
Government Code of 1991).
(Sec 7 ArtIII) The right to information guarantees the right
of the people to demand information, while Sec 28 recognizes the duty of
officialdom to give information even if nobody demands. The complete and
effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as may be provided
by law.
The contents of the MOA-AD 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
executory nature or commercial character of the agreement.
E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a principal forum for
consensus-building. In fact, it is the duty of the Presidential Adviser on the
Peace Process to conduct regular dialogues to seek relevant information,
comments, advice, and recommendations from peace partners and concerned sectors
of society.
3.
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not
recognized by law;
Yes. The provisions of the MOA indicate, among other things, that
the Parties aimed to vest in the BJE the status of an associated state or, at
any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution.
No province, city, or municipality, not even the ARMM, is recognized
under our laws as having an “associative” relationship with the national
government. Indeed, the concept implies powers that go beyond anything ever
granted by the Constitution to any local or regional government. It also
implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction
other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.
The BJE is a far more powerful entity than
the autonomous region recognized in the Constitution. It is not merely an expanded version of
the ARMM, the status of its relationship with the national government being
fundamentally different from that of the ARMM. Indeed, BJE is a state in all
but name as it meets the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit animating it – which has betrayed
itself by its use of the concept of association – runs counter to the
national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present Constitution, it is
not surprising that many of the specific provisions of the MOA-AD on the
formation and powers of the BJE are in conflict with the Constitution and the
laws. The BJE is more of a state than an autonomous region. But even assuming
that it is covered by the term “autonomous region” in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it.
b) to revise or amend the Constitution and existing laws to conform to
the MOA:
The MOA-AD provides that “any provisions of the
MOA-AD requiring amendments to the existing legal framework shall come into
force upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework,” implying an amendment of the Constitution
to accommodate the MOA-AD. This stipulation, in effect, guaranteed to
the MILF the amendment of the Constitution .
It will be observed that the President has authority, as stated in her
oath of office, only to preserve and defend the Constitution. Such presidential
power does not, however, extend to allowing her to change the Constitution, but
simply to recommend proposed amendments or revision. As 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.
The “suspensive clause” in the MOA-AD viewed in light of the above-discussed
standards.
Given the limited nature of the
President’s authority to propose constitutional amendments, she cannot
guarantee to any third party that the required amendments will eventually be
put in place, nor even be submitted to a plebiscite. The most she could do is submit
these proposals as recommendations either to Congress or the people, in whom
constituent powers are vested.
c) to concede to or recognize the claim of the Moro Islamic Liberation
Front for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF
ANCESTRAL DOMAINS)
This 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 ‘Bangsamoros.’” It defines “Bangsamoro people” as the natives or
original inhabitants of Mindanao and its adjacent islands including Palawan and
the Sulu archipelago at the time of conquest or colonization, and their descendants
whether mixed or of full blood, including their spouses.
Thus, the concept of “Bangsamoro,” as defined in this strand of the
MOA-AD, includes not only “Moros” as traditionally understood even by Muslims,
but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD
adds that the freedom of choice of indigenous peoples shall be respected. What
this freedom of choice consists in has not been specifically defined. The
MOA-AD proceeds to refer to the “Bangsamoro homeland,” the ownership of which
is vested exclusively in the Bangsamoro people by virtue of their prior rights
of occupation. Both parties to the MOA-AD acknowledge that ancestral domain
does not form part of the public domain.
Republic Act No. 8371 or the Indigenous Peoples Rights Act
of 1997 provides for clear-cut procedure for the recognition and delineation of
ancestral domain, which entails, among other things, the observance of the free
and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples.
Notably, the statute does not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.
Two, Republic Act No. 7160 or the Local Government Code of
1991 requires all national offices to conduct consultations beforeany project
or program critical to the environment and human ecology including those that
may call for the eviction of a particular group of people residing in such
locality, is implemented therein. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.
CONCLUSION:
In sum, the Presidential Adviser on the Peace Process
committed grave abuse of discretion when he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No.
8371. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross
evasion of positive duty and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present
Constitution and laws. Not only its specific provisions but the very concept underlying
them, namely, the associative relationship envisioned between the GRP and the
BJE, are unconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.
