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UNCLOS

PHILIPPINE MARITIME REGIMES

BOOK I

PHILIPPINE LAWS AND JURISPRUDENCE

The PHILJA Judicial Journal

The PHILJA Judicial Journal is published twice a year by the Research, Publications and Linkages Office of the Philippine Judicial Academy (PHILJA). The Journal features articles, lectures, research outputs and other materials of interest to members of the Judiciary, particularly judges, as well as law students and practitioners. The views expressed by the authors do not necessarily reflect the views of either the Academy or its editorial board.

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ISSN 2244-5854 SUPREME COURT OF THE PHILIPPINES

CHIEF JUSTICE Hon. RENATO C. CORONA

ASSOCIATE JUSTICES Hon. ANTONIO T. CARPIO Hon. PRESBITERO J. VELASCO, Jr. Hon. TERESITA J. LEONARDO-DE CASTRO Hon. ARTURO D. BRION Hon. DIOSDADO M. PERALTA Hon. LUCAS P. BERSAMIN Hon. MARIANO C. DEL CASTILLO Hon. ROBERTO A. ABAD Hon. MARTIN S. VILLARAMA, Jr. Hon. JOSE P. PEREZ Hon. JOSE C. MENDOZA Hon. MARIA LOURDES P. A. SERENO Hon. BIENVENIDO L. REYES Hon. ESTELA M. PERLAS-BERNABE

COURT ADMINISTRATOR Hon. JOSE MIDAS P. MARQUEZ

DEPUTY COURT ADMINISTRATORS Hon. NIMFA C. VILCHES Hon. RAUL B. VILLANUEVA

CLERK OF COURT Hon. ENRIQUETA ESGUERRA-VIDAL

ASSISTANT COURT ADMINISTRATORS Hon. THELMA C. BAHIA Hon. JENNY LIND A. DELORINO

DEPUTY CLERK OF COURT Atty. FELIPA B. ANAMA

DIVISION CLERKS OF COURT Atty. EDGAR O. ARICHETA Atty. MA. LUISA L. LAUREA Atty. LUCITA A. SORIANO PHILIPPINE JUDICIAL ACADEMY

Board of Trustees

Hon. RENATO C. CORONA Chief Justice Chairperson

Hon. ANTONIO T. CARPIO Senior Associate Justice, Supreme Court Vice Chairperson Members Hon. ADOLFO S. AZCUNA Hon. JOSE MIDAS P. MARQUEZ Chancellor Court Administrator

Hon. ANDRES B. REYES, Jr. Hon. FRANCISCO H. VILLARUZ, Jr. Presiding Justice, Court of Appeals Presiding Justice, Sandiganbayan

Hon. ERNESTO D. ACOSTA Hon. FRANKLIN J. DEMONTEVERDE Presiding Justice, Court of Tax Appeals President, Philippine Judges Association

Hon. JOSE LORENZO R. DELA ROSA Dean AMADO D. VALDEZ Presiding Judge, MTC, Victoria, Laguna President, Philippine Association of Law Schools

Hon. AMEURFINA A. MELENCIO HERRERA Founding Chancellor Emeritus Executive Officials Hon. ADOLFO S. AZCUNA Hon. JUSTO P. TORRES, Jr. Chancellor Vice Chancellor Hon. MARINA L. BUZON Executive Secretary Chiefs of Offices Hon. JUSTO P. TORRES, Jr. Finance Hon. DELILAH V. MAGTOLIS Hon. MARINA L. BUZON Academic Affairs Office Acting PHILJA Chief of Office Philippine Mediation Center

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Hon. JOSE MIDAS P. MARQUEZ Hon. HILARION L. AQUINO Court Management Ethics and Judicial Conduct

Dean CESAR L. VILLANUEVA Dr. PURIFICACION V. QUISUMBING Commercial Law International and Human Rights Law

Fr. RANHILIO C. AQUINO Prof. MYRNA S. FELICIANO Jurisprudence and Legal Philosophy Legal Method and Research

Associate Dean SEDFREY M. CANDELARIA Atty. EMMANUEL L. CAPARAS Special Areas of Concern Court Technology

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Circulation and Support Staff Romeo A. Arcullo Lope R. Palermo Daniel S. Talusig

Printing Services Leticia G. Javier and Printing Staff VOLUME 13 ISSUE NO. 36 JULY-DECEMBER 2011

THE PHILJA JUDICIAL JOURNAL

CONTENTS

OFFICIALS OF THE SUPREME COURT OF THE PHILIPPINES ...... iv OFFICIALS OF THE PHILIPPINE JUDICIAL ACADEMY ...... v

PHILIPPINE LAWS AND JURISPRUDENCE (BOOK I)

I. PHILIPPINE LAWS

Republic Act No. 3046 (As amended by RA No. 5446) An Act to Define the Baselines of the Territorial Sea of the Philippines ...... 1 Republic Act No. 5446 An Act to Amend Section One of RA No. 3046, entitled “An Act to Define the Baselines of the Territorial Sea of the Philippines” ...... 6 Presidential Decree No. 1599 Establishing an Exclusive Economic Zone and for Other Purposes ...... 11 Republic Act No. 9522 An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by RA No. 5446, to Define the Archipelagic Baseline of the Philippines and for Other Purposes ...... 14 CONTENTS

II. PHILIPPINE JURISPRUDENCE

Magallona, Merlin M. v. Ermita, Eduardo ...... 19 Concurring Opinion Associate Justice Presbitero J. Velasco, Jr...... 46 Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP) ..... 65 Separate Concurring Opinion Chief Justice Reynato S. Puno ...... 155 Separate Concurring Opinion Associate Justice Consuelo Ynares-Santiago ...... 177 Separate Concurring Opinion Associate Justice Antonio T. Carpio ...... 193 Separate Opinion Associate Justice Adolfo S. Azcuna ...... 233 Separate Opinion Associate Justice Dante O. Tinga ...... 235 Separate Opinion Associate Justice Minita V. Chico-Nazario...... 257 Dissenting Opinion Associate Justice Presbitero J. Velasco, Jr...... 264 Dissenting Opinion Associate Justice Antonio Eduardo B. Nachura ...... 272 Separate Opinion Associate Justice Ruben T. Reyes ...... 298 Separate Concurring and Dissenting Opinion Associate Justice Teresita J. Leonardo-de Castro ...... 327 Concurring and Dissenting Opinion Associate Justice Arturo D. Brion ...... 330 CONTENTS

III. RELATED ARTICLES

Lecture The Philippine National Territory Ambassador Lauro L. Baja, Jr...... 354 Reactions on the Metes and Bounds of the Philippine National Territory: An International Law and Policy Perspective Jay L. Batongbacal, Esq...... 368 Reactions on Why There is an Immediate Need to Enact a Bill Amending Republic Act No. 3046, As Amended, to Conform to the Convention on the Law of the Sea Atty. Estelito P. Mendoza ...... 391

REPUBLIC ACT NO. 3046 1

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

WHEREAS, the Constitution of the Philippines describes the national territory as comprising all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on December 10, 1898, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on November 7, 1900, and in the treaty concluded between the United States and Great Britain on January 2, 1930, and all the territory over which the Government of the Philippine Islands exercised jurisdiction at the time of the adoption of the Constitution; WHEREAS, all the waters within the limits set forth in the above- mentioned treaties have always been regarded as part of the territory of the Philippine Islands; WHEREAS, all the waters around, between and connecting the various islands of the Philippines archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenances of the land territory, forming part of the inland or internal waters of the Philippines; WHEREAS, all the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set forth in the aforementioned treaties comprise the territorial sea of the Philippines; WHEREAS, the baselines from which the territorial sea of the Philippines is determined consist of straight lines joining appropriate points of the outermost islands of the archipelago; and WHEREAS, the said baselines should be clarified and specifically defined and described for the information of all concerned; Now, therefor, 2 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

SECTION 1. The baselines for the territorial sea of the Philippines are hereby defined and described specifically as follows: REPUBLIC ACT NO. 3046 3 4 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I REPUBLIC ACT NO. 3046 5

SEC. 2. All waters within the baselines provided for in Section One hereof are considered inland or internal waters of the Philippines.

SEC. 3. This Act shall take effect upon its approval. Approved: June 17, 1961. 6 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Republic Act No. 5446

An Act to Amend Section One of Republic Act Numbered Thirty Hundred and Forty-Six, Entitled “An Act to Define the Baselines of the Territorial Sea of the Philippines”

SECTION 1. To correct typographical errors, Section One of Republic Act numbered thirty hundred and forty-six is amended to read as follows:

SECTION 1. The baselines for the territorial sea of the Philippines are hereby defined and described specifically as follows: REPUBLIC ACT NO. 5446 7 8 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I REPUBLIC ACT NO. 5446 9 10 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

SEC. 3. This Act shall take effect upon its approval. Approved: September 18, 1968. PRESIDENTIAL DECREE NO. 1599 11

Presidential Decree No. 1599 Establishing an Exclusive Economic Zone and for Other Purposes

WHEREAS, an exclusive economic zone extending to a distance of two hundred nautical miles from the baselines from which the territorial sea is measured is vital to the economic survival and development of the Republic of the Philippines; WHEREAS, such a zone is now a recognized principle of international law; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby decree and order:

SECTION 1. There is hereby established a zone to be known as the exclusive economic zone of the Philippines. The exclusive economic zone shall extend to a distance of two hundred nautical miles beyond and from the baselines from which the territorial sea is measured: Provided, That, where the outer limits of the zone as thus determined overlap the exclusive economic zone of an adjacent or neighboring state, the common boundaries shall be determined by agreement with the state concerned or in accordance with pertinent generally recognized principles of international law on delimitation.

SEC. 2. Without prejudice to the rights of the Republic of the Philippines over its territorial sea and continental shelf, it shall have and exercise in the exclusive economic zone established herein the following; (a) Sovereignty rights for the purpose of exploration and exploitation, conservation and management of the natural resources, whether living or non-living, both renewable and non-renewable, of the seabed, including the subsoil and the superjacent waters, and with regard to other activities for the economic 12 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

exploitation and exploration of the resources of the zone, such as the production of energy from the water, currents and winds; (b) Exclusive rights and jurisdiction with respect to the establishment and utilization of artificial islands, offshore terminals, installations and structures, the preservation of the marine environment, including the prevention and control of pollution, and scientific research; (c) Such other rights as are recognized by international law or state practice.

SEC. 3. Except in accordance with the terms of any agreement entered into with the Republic of the Philippines or of any license granted by it or under authority by the Republic of the Philippines, no person shall, in relation to the exclusive economic zone: (a) explore or exploit any resources; (b) carry out any search, excavation or drilling operations: (c) conduct any research; (d) construct, maintain or operate any artificial island, offshore terminal, installation or other structure or device; or (e) perform any act or engage in any activity which is contrary to, or in derogation of, the sovereign rights and jurisdiction herein provided. Nothing herein shall be deemed a prohibition on a citizen of the Philippines, whether natural or juridical, against the performance of any of the foregoing acts, if allowed under existing laws.

SEC. 4. Other states shall enjoy in the exclusive economic zone freedoms with respect to navigation and overflight, the laying of submarine cables and pipelines, and other internationally PRESIDENTIAL DECREE NO. 1599 13 lawful uses of the sea relating to navigation and communications.

SEC. 5. (a) The President may authorize the appropriate government office/agency to make and promulgate such rules and regulations which may be deemed proper and necessary for carrying out the purposes of this degree. (b) Any person who shall violate any provision of this decree or of any rule or regulation promulgated hereunder and approved by the President shall be subject to a fine which shall not be less than two thousand pesos (P2,000.00) nor be more than one hundred thousand pesos (100,000.00) or imprisonment ranging from six months to 10 years, or both such fine and imprisonment, in the discretion of the court. Vessels and other equipment or articles used in connection therewith shall be subject to seizure and forfeiture.

SEC. 6. This Decree shall take effect 30 days after publication in the Official Gazette. Approved: June 11, 1978. 14 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Republic Act No. 9522 An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baseline of the Philippines and for Other Purposes

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

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

SECTION 1. The baselines of the Philippines archipelago are hereby defined and described specifically as follows: REPUBLIC ACT NO. 9522 15 16 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I REPUBLIC ACT NO. 9522 17

SEC. 2. The baseline in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as “Regime of Islands” under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and b) Bajo de Masinloc, also known as Scarborough Shoal.

SEC. 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and jurisdiction over all portions of the national territory as defined in the Constitution and by provisions of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, as amended.

SEC. 4. This Act, together with the geographic coordinates and the chart and maps indicating the aforesaid baselines, shall be deposited and registered with the Secretary General of the United Nations.

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

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

SEC. 7. If any portion or provision of this Act is declared unconstitutional or invalid the other portions or provisions hereof which are not affected thereby shall continue to be in full force and effect.

SEC. 8. The provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, and all other laws, decrees, executive 18 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I orders, rules and issuances inconsistent with this Act are hereby amended or modified accordingly.

SEC. 9. This Act shall take effect 15 days following its publication in the Official Gazette or in any two newspaper of general circulation. Approved: March 10, 2009. MAGALLONA v. ERMITA 19

Republic of the Philippines Supreme Court Manila

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

Prof. Merlin M. Magallona, Akbayan Party-List Rep. Risa Hontiveros, Prof. Harry C. Roque, Jr., and University of the Philippines College of Law Students, Alithea Barbara Acas, Voltaire Alferes, Czarina May Altez, Francis Alvin Asilo, Sheryl Balot, Ruby Amor Barraca, Jose Javier Bautista, Romina Bernardo, Valerie Pagasa Buenaventura, Edan Marri Cañete, Vann Allen Dela Cruz, Rene Delorino, Paulyn May Duman, Sharon Escoto, Rodrigo Fajardo III, Girlie Ferrer, Raoulle Osen Ferrer, Carla Regina Grepo, Anna Marie Cecilia Go, Irish Kay Kalaw, Mary Ann Joy Lee, Maria Luisa Manalaysay, Miguel Rafael Musngi, Michael Ocampo, Jaklyn Hanna Pineda, William Ragamat, Maricar Ramos, Enrik Fort Revillas, James Mark Terry Ridon, Johann Frantz Rivera IV, Christian Rivero, Dianne Marie Roa, Nicholas Santizo, Melissa Christina Santos, Cristine Mae Tabing, Vanessa Anne Torno, Maria Ester Vanguardia, and Marcelino Veloso III, petitioners, – versus – Hon. Eduardo Ermita, in his capacity as Executive Secretary, Hon. Alberto Romulo, in his capacity as Secretary of the Department of Foreign Affairs, Hon. Rolando Andaya, in his capacity as Secretary of the Department of Budget and Management, Hon. Diony Ventura, in his capacity as Administrator of the National Mapping and Resource Information Authority, and Hon. Hilario Davide, Jr., in his capacity as representative of the Permanent Mission of the Republic of the Philippines to the United Nations, respondents. 20 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

DECISION

Carpio, J.:

THE CASE

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

THE ANTECEDENTS

In 1961, Congress passed Republic Act No. 3046 (RA No. 3046)2 demarcating the maritime baselines of the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over their “territorial sea,” the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960

1 Entitled “An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes.” 2 Entitled “An Act to Define the Baselines of the Territorial Sea of the Philippines.” 3 The third “Whereas Clause” of RA No. 3046 expresses the import of treating the Philippines as an archipelagic State: “WHEREAS, all the waters around, between, and connecting the various islands of the Philippine archipelago, irrespective of their width or dimensions, have always been considered as necessary appurtenances of the land territory, forming part of the inland waters of the Philippines.” 4 One of the four conventions framed during the first United Nations Convention on the Law of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on September 10, 1964. MAGALLONA v. ERMITA 21

(UNCLOS II) proved futile. Thus, domestically, RA No. 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA No. 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo. In March 2009, Congress amended RA No. 3046 by enacting RA No. 9522, the statute now under scrutiny. The change was prompted by the need to make RA No. 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on February 27, 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA No. 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the

5 UNCLOS III entered into force on November 16, 1994. 6 The Philippines signed the treaty on December 10, 1982. 7 Article 47, paragraphs 1–3, provide: 1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. (Emphasis supplied) x x x x 8 UNCLOS III entered into force on November 16, 1994. The deadline for the filing of application is mandated in Article 4, Annex II: 22 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Kalayaan Island Group (KIG) and the Scarborough Shoal, as “regimes of islands” whose islands generate their own applicable maritime zones. Petitioners, professors of law, law students and a legislator, in their respective capacities as “citizens, taxpayers or x x x legislators,”9 as the case may be, assail the constitutionality of RA No. 9522 on two principal grounds, namely: (1) RA No. 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty

“Where a coastal State intends to establish, in accordance with Article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientific and technical advice.” (Underscoring supplied) In a subsequent meeting, the States parties agreed that for States which became bound by the treaty before May 13, 1999 (such as the Philippines) the ten-year period will be counted from that date. Thus, RA No. 9522, which took effect on March 27, 2009, barely met the deadline. 9 Rollo, p. 34. 10 Which provides: “The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has 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.” MAGALLONA v. ERMITA 23 of Paris11 and ancillary treaties,12 and (2) RA No. 9522 opens the country’s waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the country’s nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions.13 In addition, petitioners contend that RA No. 9522’s treatment of the KIG as “regime of islands” not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA No. 9522 for what it excluded and included – its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS III’s framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal. Commenting on the petition, respondent officials raised threshold issues questioning (1) the petition’s compliance with the case or controversy requirement for judicial review grounded on petitioners’ alleged lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA No. 9522. On the merits, respondents defended RA No.9522 as the country’s compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA No. 9522

11 Entered into between the Unites States and Spain on December 10, 1898 following the conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the United States “the archipelago known as the Philippine Islands” lying within its technical description. 12 The Treaty of Washington, between Spain and the United States (November 7, 1900), transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain Convention (January 2, 1930) demarcating boundary lines between the Philippines and North Borneo. 13 Article II, Section 7, Section 8, and Section 16. 14 Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the Constitution. 24 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I does not undermine the country’s security, environment and economic interests or relinquish the Philippines’ claim over Sabah. Respondents also question the normative force, under international law, of petitioners’ assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris. We left unacted petitioners’ prayer for an injunctive writ.

THE ISSUES

The petition raises the following issues: A. Preliminarily – (1) Whether petitioners possess locus standi to bring this suit; and (2) Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA No. 9522. B. On the merits, whether RA No. 9522 is unconstitutional.

THE RULING OF THE COURT

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

ON THE THRESHOLD ISSUES

Petitioners Possess Locus Standi as Citizens Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of legislative prerogative15 nor misuse of

15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995). MAGALLONA v. ERMITA 25 public funds,16 occasioned by the passage and implementation of RA No. 9522. Nonetheless, we recognize petitioners’ locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA No. 9522, it is understandably difficult to find other litigants possessing “a more direct and specific interest” to bring the suit, thus satisfying one of the requirements for granting citizenship standing.17

The Writs of Certiorari and Prohibition are Proper Remedies to Test the Constitutionality of Statutes In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18 Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of

16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. Commission on Elections, 165 Phil. 303 (1976). 17 Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 155–156 (1995) (Feliciano, J., concurring). The two other factors are: “the character of funds or assets involved in the controversy and a clear disregard of constitutional or statutory prohibition.” Id. 18 Rollo, pp. 144–147. 19 See e.g. Aquino III v. Commission on Elections, G.R. No. 189793, April 7, 2010, 617 SCRA 623 (dismissing a petition for certiorari and 26 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I other branches of government.20 Issues of constitutional import are sometimes crafted out of statutes which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law.

RA NO. 9522 IS NOT UNCONSTITUTIONAL

RA No. 9522 is a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory Petitioners submit that RA No. 9522 “dismembers a large portion of the national territory”21 because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris’ technical description, Philippine

prohibition assailing the constitutionality of Republic Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. Commission on Elections, G.R. No. 188078, January 25, 2010, 611 SCRA 137 (issuing the writ of prohibition to declare unconstitutional Republic Act No. 9591); Macalintal v. Commission on Elections, 453 Phil. 586 (2003) (issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic Act No. 9189). 20 See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, March 25, 2008, 549 SCRA 77 (granting a writ of certiorari against the Philippine Senate and nullifying the Senate contempt order issued against petitioner). 21 Rollo, p. 31. MAGALLONA v. ERMITA 27 sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris.22 Petitioners’ theory fails to persuade us. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the world’s oceans and submarine areas, recognizing coastal and archipelagic States’ graduated authority over a limited span of waters and submarine lands along their coasts. On the other hand, baselines laws such as RA No. 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

ART. 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. – The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the 22 Respondents state in their Comment that petitioners’ theory “has not been accepted or recognized by either the United States or Spain,” the parties to the Treaty of Paris. Respondents add that “no State is known to have supported this proposition.” Rollo, p. 179. 23 UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner Magallona himself defined as “a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. x x x x” (MERLIN M. MAGALLONA, Primer on the Law of the Sea 1 [1997]) (Italicization supplied). 28 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

continental shelf shall be measured from archipelagic baselines drawn in accordance with Article 47. (Emphasis supplied) Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). Even under petitioners’ theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA No. 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the “outermost islands and drying reefs of the archipelago.”24 UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of sea-use 24 Following Article 47(1) of UNCLOS III which provides: An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied) 25 Under the United Nations Charter, use of force is no longer a valid means of acquiring territory. MAGALLONA v. ERMITA 29 rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.26

RA No. 9522’s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines’ Claim of Sovereignty Over these Areas

Petitioners next submit that RA No. 9522’s use of UNCLOS III’s regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, “weakens our territorial claim” over that area.27 Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion from the Philippine archipelagic baselines results in the loss of “about 15,000 square nautical miles of territorial waters,” prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA No. 3046 and RA No. 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA No. 9522 and its congressional deliberations, vis-à-vis the Philippines’ obligations under UNCLOS III, belie this view. The configuration of the baselines drawn under RA No. 3046 and RA No. 9522 shows that RA No. 9522 merely followed the basepoints mapped by RA No. 3046, save for at least nine basepoints that RA No. 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s limitation on the maximum length of baselines). Under RA No. 3046, as under RA No. 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn 26 The last paragraph of the preamble of UNCLOS III states that “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” 27 Rollo, p. 51. 28 Id. at 51–52, 64–66. 30 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners’ argument branding RA No. 9522 as a statutory renunciation of the Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose. Petitioners’ assertion of loss of “about 15,000 square nautical miles of territorial waters” under RA No. 9522 is similarly unfounded both in fact and law. On the contrary, RA No. 9522, by optimizing the location of basepoints, increased the Philippines’ total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29

Extentofmaritimearea Extentofmaritimearea usingRANo.3046,as usingRANo.9522, amended,takinginto takingintoaccount accounttheTreatyof UNCLOSIII(insquare Paris’delimitation(in nauticalmiles) squarenauticalmiles)

Internalor archipelagic 166,858 171,435 waters

Territorial Sea 274,13632,106

Exclusive Economic 382,669 Zone

TOTAL 440,994 586,210

29 Based on figures respondents submitted in their Comment (Id. at 182). MAGALLONA v. ERMITA 31

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA No. 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.30

30 Under Article 74. 32 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

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

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as “Regime of Islands” under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): (a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and (b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied) Had Congress in RA No. 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47(3) of UNCLOS III requires that “[t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.” Second, Article 47(2) of UNCLOS III requires that “the length of the baselines shall not exceed 100 nautical miles,” save for three percent (3%) of the total number of baselines which can reach up to 125 nautical miles.31 Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them

31 See note 7. 32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan. 33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123 nautical west of Zambales. MAGALLONA v. ERMITA 33

from the nearest basepoint will inevitably “depart to an appreciable extent from the general configuration of the archipelago.” The principal sponsor of RA No. 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the foregoing during the Senate deliberations: What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating the provision of international law which states: “The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago.” So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own. This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural configuration of the archipelago.34 (Emphasis supplied) Similarly, the length of one baseline that RA No. 3046 drew exceeded UNCLOS III’s limits. The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents: [T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner

34 Journal, Senate 14th Congress 44th Session 1416 (January 27, 2009). 34 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

provided by Article 47 of [UNCLOS III]. As defined by RA No. 3046, as amended by RA No. 5446, the baselines suffer from some technical deficiencies, to wit: 1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which states that “The length of such baselines shall not exceed 100 nautical miles, except that up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.” 2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the baselines system. This will enclose an additional 2,195 nautical miles of water. 3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were later found to be located either inland or on water, not on low-water line and drying reefs as prescribed by Article 47.35 Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as “‘Regime[s] of Islands’ under the Republic of the Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any “naturally formed area of land, surrounded by water, which is above water at high tide,” such as portions of the KIG, qualifies under the category of “regime of islands,” whose islands generate their own applicable maritime zones.37

35 Rollo, p. 159. 36 Section 2, RA No. 9522. 37 Article 121 provides: “Regime of islands. 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. MAGALLONA v. ERMITA 35

Statutory Claim Over Sabah under RA No. 5446 Retained

Petitioners’ argument for the invalidity of RA No. 9522 for its failure to textualize the Philippines’ claim over Sabah in North Borneo is also untenable. Section 2 of RA No. 5446, which RA No. 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:

UNCLOS III and RA No. 9522 not Incompatible with the Constitution’s Delineation of Internal Waters

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

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” 38 Rollo, pp. 56–57, 60–64. 36 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

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

ART. 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil. 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with Article 47, described as archipelagic waters, regardless of their depth or distance from the coast. 2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. x x x x 4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. (Emphasis supplied) The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting 39 Paragraph 2, Section 2, Article XII of the Constitution uses the term “archipelagic waters” separately from “territorial sea.” Under UNCLOS III, an archipelagic State may have internal waters – such as those enclosed by closing lines across bays and mouths of rivers. See Article 50, UNCLOS III. Moreover, Article 8(2) of UNCLOS III provides: Where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters. (Emphasis supplied) MAGALLONA v. ERMITA 37 the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 40 Mandated under Articles 52 and 53 of UNCLOS III:

ART. 52. Right of innocent passage. 1. Subject to Article 53 and without prejudice to Article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3. 2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. (Emphasis supplied)

ART. 53. Right of archipelagic sea lanes passage. 1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. 2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. 3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, 38 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41 provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary. 5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 percent of the distance between the nearest points on islands bordering the sea lane. 6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes. 7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it. 8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations. 9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them. 10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given. 11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article. 12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation. (Emphasis supplied) 41 Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled “AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS MAGALLONA v. ERMITA 39

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

AND AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN.” 42 The relevant provision of UNCLOS III provides: ART. 17. Right of innocent passage. Subject to this Convention, ships of all States, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea. (Emphasis supplied) ART. 19. Meaning of innocent passage. 1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. 2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; (f) the launching, landing or taking on board of any military device; (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; (h) any act of willful and serious pollution contrary to this Convention; 40 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I customary international law,43 thus automatically incorporated (i) any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l) any other activity not having a direct bearing on passage ART. 21. Laws and regulations of the coastal State relating to innocent passage. 1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic; (b) the protection of navigational aids and facilities and other facilities or installations; (c) the protection of cables and pipelines; (d) the conservation of the living resources of the sea; (e) the prevention of infringement of the fisheries laws and regulations of the coastal State; (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; (g) marine scientific research and hydrographic surveys; (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. 2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards. 3. The coastal State shall give due publicity to all such laws and regulations. 4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea. 43 The right of innocent passage through the territorial sea applies only to ships and not to aircrafts (Article 17, UNCLOS III). The right MAGALLONA v. ERMITA 41 in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community. The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage45 does not place them in lesser footing vis-à-vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States’ archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’ territorial

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

44 Following Section 2, Article II of the Constitution: “SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.” (Emphasis supplied) 45 “Archipelagic sea lanes passage is essentially the same as transit passage through straits” to which the territorial sea of continental coastal State is subject. R.R. CHURABILL AND A.V. LOWE, THE LAW OF THE SEA 127 (1999). 46 Falling under Article 121 of UNCLOS III (see note 37). 42 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47 Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State

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

ART. 58. Rights and duties of other States in the exclusive economic zone. 1. In the exclusive economic zone, all States, whether coastal or landlocked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part. x x x x Beyond the exclusive economic zone, other States enjoy the freedom of the high seas, defined under UNCLOS III as follows:

ART. 87. Freedom of the high seas. 1. The high seas are open to all States, whether coastal or landlocked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and landlocked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; MAGALLONA v. ERMITA 43

Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, “do not embody judicially enforceable constitutional rights x x x.”49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are not violated by RA No. 9522. (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in Section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. 48 See note 13. 49 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Tañada v. Angara, 338 Phil. 546, 580–581 (1997). 50 G.R. No. 101083, July 30, 1993, 224 SCRA 792. 51 “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.” 52 “The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate 44 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non- living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it. UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space – the exclusive economic zone – in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.

RA NO. 9522 AND THE PHILIPPINES’ MARITIME ZONES

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA No. 9522.54 We have looked at the relevant provision of UNCLOS III55 and we technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.” 53 This can extend up to 350 nautical miles if the coastal State proves its right to claim an extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77). 54 Rollo, pp. 67–69. 55 Article 47(1) provides: “An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.” (Emphasis supplied) MAGALLONA v. ERMITA 45 find petitioners’ reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it weakens the country’s case in any international dispute over Philippine maritime space. These are consequences Congress wisely avoided. The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA No. 9522, allows an internationally-recognized delimitation of the breadth of the Philippines’ maritime zones and continental shelf. RA No. 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest. WHEREFORE, we DISMISS the petition. SO ORDERED. Corona (C.J.), Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Villarama, Jr., Mendoza and Sereno, JJ., concur. Velasco, Jr., J., Pls. See Concurring Opinion Abad., J., I certify that Mr. Justice Abad left his concurring vote. Perez, J., On Leave. 46 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

CONCURRING OPINION

Velasco, Jr., J.:

I concur with the ponencia and add the following complementary arguments and observations: A statute is a product of hard work and earnest studies of Congress to ensure that no constitutional provision, prescription or concept is infringed. Withal, before a law, in an appropriate proceeding, is nullified, an unequivocal breach of, or a clear conflict with, the Constitution must be demonstrated in such a way as to leave no doubt in the mind of the Court.1 In the same token, if a law runs directly afoul of the Constitution, the Court’s duty on the matter should be clear and simple: Pursuant to its judicial power and as final arbiter of all legal questions,2 it should strike such law down, however laudable its purpose/s might be and regardless of the deleterious effect such action may carry in its wake. Challenged in these proceedings is the constitutionality of Republic Act (RA No. 9522) entitled “An Act to Amend Certain Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the Archipelagic Baselines of the Philippines and for Other Purposes.” For perspective, RA No. 3046, “An Act to Define the Baselines of the Territorial Sea of the Philippines, was enacted in 1961 to comply with the United Nations Convention on the Law of the Sea (UNCLOS) I. Eight years later, RA No. 5446 was enacted to amend typographical errors relating to coordinates in RA No. 3046. The latter law also added a provision asserting Philippine sovereignty over Sabah. 1 League of Cities of the Philippines v. Commission on Elections, G.R. No. 176951, December 21, 2009, 608 SCRA 636. 2 Under Article VIII, Section 5 of the Constitution, the Supreme Court is empowered to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: all cases in which the Constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphasis supplied) MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION 47

As its title suggests, RA No. 9522 delineates archipelagic baselines of the country, amending in the process the old baselines law, RA No. 3046. Everybody is agreed that RA No. 9522 was enacted in response to the country’s commitment to conform to some 1982 Law of the Sea Convention (LOSC) or UNCLOS III provisions to define new archipelagic baselines through legislation, the Philippines having signed3 and eventually ratified4 this multilateral treaty. The Court can take judicial notice that RA No. 9522 was registered and deposited with the UN on April 4, 2009. As indicated in its Preamble,5 1982 LOSC aims, among other things, to establish, with due regard for the sovereignty of all States, “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans.” One of the measures to attain the order adverted to is to have a rule on baselines. Of particular relevance to the Philippines, as an archipelagic state, is Article 47 of UNCLOS III which deals with baselines: 1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.

3 December 10, 1982. 4 May 8, 1984. 5 Available on (visited July 28, 2011). 48 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

x x x x 9. The archipelagic State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary- General of the United Nations.6 (Emphasis added) To obviate, however, the possibility that certain UNCLOS III baseline provisions would, in their implementation, undermine its sovereign and/or jurisdictional interests over what it considers its territory,7 the Philippines, when it signed UNCLOS III on December 10, 1982, made the following “Declaration” to said treaty: The Government of the Republic of the Philippines [GRP] hereby manifests that in signing the 1982 United Nations Convention on the Law of the Sea, it does so with the understandings embodied in this declaration, made under the provisions of Article 310 of the Convention, to wit: The signing of the Convention by the [GRP] shall not in any manner impair or prejudice the sovereign rights of the [RP] under and arising from the Constitution of the Philippines; Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the United States of America [USA], under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the [USA] and Great Britain of January 2, 1930; x x x x Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto; The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or

6 UNCLOS, Article 47, December 10, 1982.

7 J. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY 57 (2003). MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION 49

Proclamations of the Republic of the Philippines. The [GRP] maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution; The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty independence and security; The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.8 (Emphasis added) Petitioners challenge the constitutionality of RA No. 9522 on the principal ground that the law violates Section 1, Article I of the 1987 Constitution on national territory which states:

SECTION 1. The 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. 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. (Emphasis supplied) According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission which drafted the 1987 Constitution, the aforequoted Section 1 on national territory was “in substance a copy of its 1973 counterpart.”9 Article I of the 1973 Constitution reads: 8 See J. Batongbacal, The Metes and Bounds of the Philippine National Territory, An International Law and Policy Perspective, Supreme Court of the Philippines, Philippine Judicial Academy Third Distinguished Lecture, Far Eastern University, June 27, 2008. 9 J. Bernas, supra note 7, at 10. 50 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

SECTION 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the air space, the subsoil, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. 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. (Emphasis added.) As may be noted both constitutions speak of the “Philippine archipelago,” and, via the last sentence of their respective provisions, assert the country’s adherence to the “archipelagic principle.” Both constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2) other territories belonging to the Philippines. So what or where is Philippine archipelago contemplated in the 1973 and 1987 Constitutions then? Fr. Bernas answers the poser in the following wise: Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the 1973 Constitution. x x x x x x x x x x To understand [the meaning of national territory as comprising the Philippine archipelago], one must look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final form. Section 1 of the first draft submitted by the Committee on National Territory almost literally reproduced Article I of the 1935 Constitution x x x. Unlike the 1935 version, however, the draft designated the Philippines not simply as the Philippines but as “the Philippine archipelago.10 In response to the criticism that the definition was colonial in tone x x x, the second draft further designated the Philippine archipelago, as the historic home of the Filipino people from its beginning.11

10 Citing Report No. 01 of the Committee on National Territory. 11 Citing Report No. 02 of the Committee on National Territory. MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION 51

After debates x x x, the Committee reported out a final draft, which became the initially approved version: “The national territory consists of the Philippine archipelago which is the ancestral home of the Filipino people and which is composed of all the islands and waters embraced therein x x x.” What was the intent behind the designation of the Philippines as an “archipelago”? x x x Asked by Delegate Roselller Lim (Zamboanga) where this archipelago was, Committee Chairman Quintero answered that it was the area delineated in the Treaty of Paris. He said that objections to the colonial implication of mentioning the Treaty of Paris was responsible for the omission of the express mention of the Treaty of Paris. Report No. 01 of the Committee on National Territory had in fact been explicit in its delineation of the expanse of this archipelago. It said: Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a huge or giant rectangle will emerge, measuring about 600 miles in width and 1,200 miles in length. Inside this giant rectangle are the 7,100 islands comprising the Philippine Islands. From the east coast of Luzon to the eastern boundary of this huge rectangle in the Pacific Ocean, there is a distance of over 300 miles. From the west coast of Luzon to the western boundary of this giant rectangle in the China sea, there is a distance of over 150 miles. When the [US] Government enacted the Jones Law, the Hare-Hawes Cutting Law and the Tydings McDuffie Law, it in reality announced to the whole world that it was turning over to the Government of the Philippine Islands an archipelago (that is a big body of water studded with islands), the boundaries of which archipelago are set forth in Article III of the Treaty of Paris. It also announced to the whole world that the waters inside the giant rectangle belong to the Philippines – that they are not part of the high seas. When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was ceding to 52 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines specified in the treaty, and that the archipelago consisted of the huge body of water inside the boundaries and the islands inside said boundaries. The delineation of the extent of the Philippine archipelago must be understood in the context of the modifications made both by the Treaty of Washington of November 7, 1900, and of the Convention of January 12, 1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and the Turtle and Mangsee Islands. However, x x x the definition of the archipelago did not include the Batanes group[, being] outside the boundaries of the Philippine archipelago as set forth in the Treaty of Paris. In literal terms, therefore, the Batanes islands would come not under the Philippine archipelago but under the phrase “all other territories belong to the Philippines.”12 x x x (Emphasis added) From the foregoing discussions on the deliberations of the provisions on national territory, the following conclusion is abundantly evident: the “Philippine archipelago” of the 1987 Constitution is the same “Philippine archipelago” referred to in Article I of the 1973 Constitution which in turn corresponds to the territory defined and described in Article 1 of the 1935 Constitution,13 which pertinently reads:

SECTION 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris concluded between the [US] and Spain on the tenth day of December, [1898], the limits of which are set forth in Article III of said treaty, together with all the islands in the treaty concluded at Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between the [US] and Great Britain x x x. While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so the nationalistic arguments went, being “a repulsive reminder of the indignity

12 J. Bernas, supra note 7, at 11–14. 13 Id. at 14. MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION 53 of our colonial past,”14 it is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of the national territory. On the other hand, the phrase “all other territories over which the Philippines has sovereignty or jurisdiction,” found in the 1987 Constitution, which replaced the deleted phrase “all territories belonging to the Philippines by historic right or legal title”15 found in the 1973 Constitution, covers areas linked to the Philippines with varying degrees of certainty.16 Under this category would fall: (a) Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee on National Territory, described as belonging to the Philippines in all its history;17 (b) Sabah, over which a formal claim had been filed, the so-called Freedomland (a group of islands known as Spratleys); and (c) any other territory, over which the Philippines had filed a claim or might acquire in the future through recognized modes of acquiring territory.18 As an author puts it, the deletion of the words “by historic right or legal title” is not to be interpreted as precluding future claims to areas over which the Philippines does not actually exercise sovereignty.19 Upon the foregoing perspective and going into specifics, petitioners would have RA No. 9522 stricken down as unconstitutional for the reasons that it deprives the Philippines of what has long been established as part and parcel of its national territory under the Treaty of Paris, as supplemented

14 Id. at 9; citing Speech, Session February 15, 1972, of Delegates Amanio Sorongon, et al. 15 The history of this deleted phrase goes back to the last clause of Article I of the 1935 Constitution which included “all territory over which the present Government of the Philippine Islands exercises jurisdiction. See J. Bernas, supra note 7, at 14. 16 J. Bernas, supra note 7, at 16. 17 Id.; citing deliberations of the February 17, 1972 Session. 18 Id.

19 De Leon, PHILIPPINE CONSTITUTION 62 (2011). 54 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I by the aforementioned 1900 Treaty of Washington or, to the same effect, revises the definition on or dismembers the national territory. Pushing their case, petitioners argue that the constitutional definition of the national territory cannot be remade by a mere statutory act.20 As another point, petitioners parlay the theory that the law in question virtually weakens the country’s territorial claim over the Kalayaan Island Group (KIG) and Sabah, both of which come under the category of “other territories” over the Philippines has sovereignty or jurisdiction. Petitioners would also assail the law on grounds related to territorial sea lanes and internal waters transit passage by foreign vessels. It is remarkable that petitioners could seriously argue that RA No. 9522 revises the Philippine territory as defined in the Constitution, or worse, constitutes an abdication of territory. It cannot be over-emphasized enough that RA No. 9522 is a baseline law enacted to implement the 1982 LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime zones. Or as the ponencia aptly states, RA No. 9522 aims to mark out specific base points along the Philippine coast from which baselines are drawn to serve as starting points to measure the breadth of the territorial sea and maritime zones.21 The baselines are set to define the sea limits of a state, be it coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the prescriptions of UNCLOS III, RA No. 9522 did not surrender any territory, as petitioners would insist at every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that countries can have territories outside their baselines. Far from having a dismembering effect, then, RA No. 9522 has in a limited but real sense increased the country’s maritime boundaries. How this situation comes about

20 Petition, pp. 4–5. 21 Article 48 of UNCLOS III provides that the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from the archipelagic baseline drawn in accordance with Article 47. MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION 55 was extensively explained by then Minister of State and head of the Philippine delegation to UNCLOS III Arturo Tolentino in his sponsorship speech22 on the concurrence of the Batasang Pambansa with the LOSC: x x x x Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area inside the archipelagic base lines become a unified whole and the waters between the islands which formerly were regarded by international law as open or international seas now become waters under the complete sovereignty of the Filipino people. In this light there would be an additional area of 141,800 square nautical miles inside the baselines that will be recognized by international law as Philippine waters, equivalent to 45,351,050 hectares. These gains in the waters of the sea, 45,211,225 hectares outside the baselines and 141,531,000 hectares inside the base lines, total 93,742,275 hectares as a total gain in the waters under Philippine jurisdiction. From a pragmatic standpoint, therefore, the advantage to our country and people not only in terms of the legal unification of land and waters of the archipelago in the light of international law, but also in terms of the vast resources that will come under the dominion and jurisdiction of the Republic of the Philippines, your Committee on Foreign Affairs does not hesitate to ask this august Body to concur in the Convention by approving the resolution before us today. May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of the Sea. Lest it be overlooked, the constitutional provision on national territory, as couched, is broad enough to encompass RA No. 9522’s definition of the archipelagic baselines. To reiterate, the laying down of baselines is not a mode of acquiring or asserting ownership a territory over which a state exercises 22 R.P. Lotilla, THE PHILIPPINE NATIONAL TERRITORY: A COLLECTION OF RELATED DOCUMENTS 513–517 (1995); citing Batasang Pambansa, Acts and Resolution, 6th Regular Session. 56 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I sovereignty. They are drawn for the purpose of defining or establishing the maritime areas over which a state can exercise sovereign rights. Baselines are used for fixing starting point from which the territorial belt is measured seawards or from which the adjacent maritime waters are measured. Thus, the territorial sea, a marginal belt of maritime waters, is measured from the baselines extending 12 nautical miles outward.23 Similarly, Article 57 of the 1982 LOSC provides that the Exclusive Economic Zone (EEZ) “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”24 Most important to note is that the baselines indicated under RA No. 9522 are derived from Article 47 of the 1982 LOSC which was earlier quoted. Since the 1987 Constitution’s definition of national territory does not delimit where the Philippine’s baselines are located, it is up to the political branches of the government to supply the deficiency. Through Congress, the Philippines has taken an official position regarding its baselines to the international community through RA No. 3046,25 as amended by RA No. 544626 and RA 9522. When the Philippines deposited a copy of RA No. 9522 with the UN Secretary General, we effectively complied in good faith with our obligation under the 1982 LOSC. A declaration by the Court of the constitutionality of the law will complete the bona fides of the Philippines vis-a-vis the law of the sea treaty. It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an imposing impact on the signatory states’ jurisdiction and even their sovereignty. But this actuality, without more, can hardly provide a justifying dimension to nullify the complying RA No. 9522. As held by the Court in Bayan Muna v. Romulo,27 treaties and international agreements have 23 J. Bernas, supra note 7, at 22. 24 UNCLOS III, Article 57. 25 June 17, 1961. 26 September 18, 1968. 27 G.R. No. 159618, February 1, 2011; citing Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18. MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION 57 a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary acts, states may decide to surrender or waive some aspects of their sovereignty. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or reciprocal undertaking. On the premise that the Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution. As a signatory of the 1982 LOSC, it behooves the Philippines to honor its obligations thereunder. Pacta sunt servanda, a basic international law postulate[s] that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.”28 The exacting imperative of this principle is such that a state may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.”29 The allegation that Sabah has been surrendered by virtue of RA No. 9522, which supposedly repealed the hereunder provision of RA No. 5446, is likewise unfounded.

SEC. 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. There is nothing in RA No. 9522 indicating a clear intention to supersede Section 2 of RA No. 5446. Petitioners obviously have read too much into RA No. 9522’s amendment on the baselines found in an older law. Aside from setting the country’s baselines, RA No. 9522 is, in its Section 3, quite explicit in its reiteration of the Philippines’ exercise of sovereignty, thus:

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

28 Article 26, Vienna Convention on the Law of Treaties, 1969. 29 Article 13, Declaration of Rights and Duties of States Adopted by the International Law Commission, 1949. 58 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

the national territory as defined in the Constitution and by provisions of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, as amended. To emphasize, baselines are used to measure the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. Having KIG and the Scarborough Shoal outside Philippine baselines will not diminish our sovereignty over these areas. Article 46 of UNCLOS III in fact recognizes that an archipelagic state, such as the Philippines, is a state “constituted wholly by one or more archipelagos and may include other islands.” (emphasis supplied) The “other islands” referred to in Article 46 are doubtless islands not forming part of the archipelago but are nevertheless part of the state’s territory. The Philippines’ sovereignty over KIG and Scarborough Shoal are, thus, in no way diminished. Consider: Other countries such as Malaysia and the United States have territories that are located outside its baselines, yet there is no territorial question arising from this arrangement.30 It may well be apropos to point out that the Senate version of the baseline bill that would become RA No. 9522 contained the following explanatory note: The law “reiterates our sovereignty over the Kalayaan Group of Islands declared as part of the Philippine territory under Presidential Decree No. 1596. As part of the Philippine territory, they shall be considered as a ‘regime of islands’ under Article 121 of the Convention.”31 Thus, instead of being in the nature of a “treasonous surrender” that petitioners have described it to be, RA No. 9522 even harmonizes our baseline laws with our international agreements, without limiting our territory to those confined within the country’s baselines. Contrary to petitioners’ contention, the classification of KIG and the Scarborough Shoal as falling under the Philippine’s regime of islands is not constitutionally objectionable. Such a classification serves as compliance with LOSC and the 30 See J. Batongbacal, supra note 8. 31 Id. MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION 59

Philippines’ assertion of sovereignty over KIG and Scarborough Shoal. In setting the baseline in KIG and Scarborough Shoal, RA No. 9522 states that these are areas “over which the Philippines likewise exercises sovereignty and jurisdiction.” It is, thus, not correct for petitioners to claim that the Philippines has lost 15,000 square nautical miles of territorial waters upon making this classification. Having 15,000 square nautical miles of Philippine waters outside of our baselines, to reiterate, does not translate to a surrender of these waters. The Philippines maintains its assertion of ownership over territories outside of its baselines. Even China views RA No. 9522 as an assertion of ownership, as seen in its Protest32 filed with the UN Secretary- General upon the deposit of RA No. 9522. We take judicial notice of the effective occupation of KIG by the Philippines. Petitioners even point out that national and local elections are regularly held there. The classification of KIG as under a “regime of islands” does not in any manner affect the Philippines’ consistent position with regard to sovereignty over KIG. It does not affect the Philippines’ other acts of ownership such as occupation or amend Presidential Decree No. 1596, which declared KIG as a municipality of Palawan. The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not detract to the constitutionality of the law in question. The resolution of the problem lies with the political departments of the government.

32 The Protest reads in part: “The above-mentioned Philippine Act illegally claims Huangyan Island (referred as “Bajo de Masinloc” in the Act) of China as “areas over which the Philippines likewise exercises sovereignty and jurisdiction.” The Chinese Government hereby reiterates that Huangyan Island and Nansha Islands have been part of the territory of China since ancient time. The People’s Republic of China has indisputable sovereignty over Huangyan Island and Nansha Islands and their surrounding areas. Any claim to territorial sovereignty over Huangyan Island and Nansha Islands by any other State is, therefore, null and void.” Available on (visited August 9, 2011). 60 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

All told, the concerns raised by the petitioners about the diminution or the virtual dismemberment of the Philippine territory by the enactment of RA No. 9522 are, to me, not well grounded. To repeat, UNCLOS III pertains to a law on the seas, not territory. As part of its Preamble,33 LOSC recognizes “the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans x x x.” This brings me to the matter of transit passage of foreign vessels through Philippine waters. Apropos thereto, petitioners allege that RA No. 9522 violates the nuclear weapons-free policy under Section 8, in relation to Section 16, Article II of the Constitution, and exposes the Philippines to marine pollution hazards, since under the LOSC the Philippines supposedly must give to ships of all states the right of innocent passage and the right of archipelagic sea- lane passage. The adverted Section 8, Article II of the 1987 Constitution declares the adoption and pursuit by the Philippines of “a policy of freedom from nuclear weapons in its territory.” On the other hand, the succeeding Section l6 underscores the State’s firm commitment “to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” Following the allegations of petitioners, these twin provisions will supposedly be violated inasmuch as RA No. 9522 accedes to the right of innocent passage and the right of archipelagic sea lane passage provided under the LOSC. Therefore, ships of all nations – be they nuclear-carrying warships or neutral commercial vessels transporting goods – can assert the right to traverse the waters within our islands. A cursory reading of RA No. 9522 would belie petitioners’ posture. In context, RA No. 9522 simply seeks to conform to our international agreement on the setting of baselines and provides nothing about the designation of archipelagic sea lane passage or the regulation of innocent passage within our waters. Again, petitioners have read into the amendatory RA No. 9522 something not intended. 33 Supra note 5. MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION 61

Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic party-states in terms of transit under Articles 51 to 53, which are explained below: To safeguard, in explicit terms, the general balance struck by [Articles 51 and 52] between the need for passage through the area (other than straits used for international navigation) and the archipelagic state’s need for security, Article 53 gave the archipelagic state the right to regulate where and how ships and aircraft pass through its territory by designating specific sea lanes. Rights of passage through these archipelagic sea lanes are regarded as those of transit passage: (1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for safe, continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. (2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. (3) Archipelagic sea lanes passage is the exercise in accordance with the present Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.34 But owing to the geographic structure and physical features of the country, i.e., where it is “essentially a body of water studded with islands, rather than islands with water around them,”35 the Philippines has consistently maintained the conceptual unity of land and water as a necessary element for

34 C. Ku, The Archipelagic States Concept and Regional Stability in Southeast Asia, Case W. Res. J. Int’l L., Vol. 23:463, 469; citing 1958 U.N. Conference on the Law of the Sea, Summary Records 44, Doc. A/Conf. 13/42. 35 Id. 62 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

territorial integrity,36 national security (which may be compromised by the presence of warships and surveillance ships on waters between the islands),37 and the preservation of its maritime resources. As succinctly explained by Minister Arturo Tolentino, the essence of the archipelagic concept is “the dominion and sovereignty of the archipelagic State within its baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable unity of the land and water domain.”38 Indonesia, like the Philippines, in terms of geographic reality, has expressed agreement with this interpretation of the archipelagic concept. So it was that in 1957, the Indonesian Government issued the Djuanda Declaration, therein stating: [H]istorically, the Indonesian archipelago has been an entity since time immemorial. In view of the territorial entirety and of preserving the wealth of the Indonesian state, it is deemed necessary to consider all waters between the islands and entire entity. x x x On the ground of the above considerations, the Government states that all waters around, between and connecting, the islands or parts of islands belonging to the Indonesian archipelago irrespective of their width or dimension are natural appurtenances of its land territory and therefore an integral part of the inland or national waters subject to the absolute sovereignty of Indonesia.39 (Emphasis supplied) Hence, the Philippines maintains the sui generis character of our archipelagic waters as equivalent to the internal waters 36 Hiran W. Jayewardene, The Regime of Islands in International Law, AD Dordrecht: Martinus Nijhoff Publishers, p. 103 (1990). 37 Id. at 112. 38 UNCLOS III Off. Rec., Vol. II, 264, paragraph 65, and also paragraphs 61–62 and 66; cited in B. Kwiatkowska, “The Archipelagic Regime in Practice in the Philippines and Indonesia – Making or Breaking International Law?,” International Journal of Estuarine and Coastal Law, Vol. 6, No. 1, pp. 6–7.

39 4 Whiteman D.G., INTERNATIONAL LAW 284 (1965); quoted in C. Ku, supra note 34, at 470. MAGALLONA v. ERMITA I J VELASCO, JR., CONCURRING OPINION 63 of continental coastal states. In other words, the landward waters embraced within the baselines determined by RA No. 9522, i.e., all 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.40 Accordingly, such waters are not covered by the jurisdiction of the LOSC and cannot be subjected to the rights granted to foreign states in archipelagic waters, e.g., the right of innocent passage,41 which is allowed only in the territorial seas, or that area of the ocean comprising 12 miles from the baselines of our archipelago; archipelagic sea lane passage;42 over flight;43 and traditional fishing rights.44 Our position that all waters within our baselines are internal waters, which are outside the jurisdiction of the 1982 LOSC,45 was abundantly made clear by the Philippine Declaration at the time of the signing of the LOSC on December 10, 1982. To reiterate, paragraphs 5, 6 and 7 of the Declaration state: 5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential decrees of Proclamation of the Republic of the Philippines; the Government x x x maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution; 6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence and security;

40 1987 CONSTITUTION, Article I. 41 LOSC, Articles 52 and 54. 42 LOSC, Article 53, paragraph 2. 43 LOSC, Article 53, paragraph 2. 44 LOSC, Article 51. 45 LOSC, Article 8, paragraph 2. 64 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines and removes straits connecting this water with the economic zone or high seas from the rights of foreign vessels to transit passage for international navigation. (Emphasis supplied)46 More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity of the Philippine state as comprising both water and land was strengthened by the proviso in its first article, viz: “The waters around, between, and connecting the islands of the [Philippine] archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (emphasis supplied) In effect, contrary to petitioners’ allegations, the Philippines’ ratification of the 1982 LOSC did not matter-of- factly open our internal waters to passage by foreign ships, either in the concept of innocent passage or archipelagic sea lane passage, in exchange for the international community’s recognition of the Philippines as an archipelagic state. The Filipino people, by ratifying the 1987 Constitution, veritably rejected the quid pro quo petitioners take as being subsumed in that treaty. Harmonized with the Declaration and the Constitution, the designation of baselines made in RA No. 9522 likewise designates our internal waters, through which passage by foreign ships is not a right, but may be granted by the Philippines to foreign states but only as a dissolvable privilege. In view of the foregoing, I vote to DISMISS the Petition.

46 Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, “The United Nations Convention on the Law of the Sea: Implications of Philippine Ratification,” 9 Philippine Yil (1983) 48–9 and 61–2; and Congress of the Philippines, First Regular Session, Senate, S. No. 232, Explanatory Note and An Act to Repeal Section 2 (concerning TS baselines around Sabah disputed with Malaysia) of the 1968 Act No. 5446. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 65

Republic of the Philippines Supreme Court Manila

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

The Province of North Cotabato, duly represented by Gov. Jesus Sacdalan and/or Vice-Gov. Emmanuel Piñol, for and in his own behalf, petitioners, – versus – The Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), represented by Sec. Rodolfo Garcia, Atty. Leah Armamento, Atty. Sedfrey Candelaria, Mark Ryan Sullivan and/or Gen. Hermogenes Esperon, Jr., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents. G.R. No. 183752 October 14, 2008

City Government of Zamboanga, as represented by Hon. Celso L. Lobregat, City Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep. Ma. Isabelle G. Climaco, District 1, and Rep. Erico Basilio A. Fabian, District 2, City of Zamboanga, petitioners, – versus – The Government of the Republic of the Philippines Peace Negotiating Panel (GRP), as represented by Rodolfo C. Garcia, Leah Armamento, Sedfrey Candelaria, Mark Ryan Sullivan and Hermogenes Esperon, in his capacity as the Presidential Adviser on Peace Process, respondents. 66 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

G.R. No. 183893 October 14, 2008

The City of Iligan, duly represented by City Mayor Lawrence Lluch Cruz, petitioner, – versus – The Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), represented by Sec. Rodolfo Garcia, Atty. Leah Armamento, Atty. Sedfrey Candelaria, Mark Ryan Sullivan; Gen. Hermogenes Esperon, Jr., in his capacity as the present and duly appointed Presidential Adviser on the Peace Process; and/or Sec. Eduardo Ermita, in his capacity as Executive Secretary, respondents. G.R. No. 183951 October 14, 2008

The Provincial Government of Zamboanga Del Norte, as represented by Hon. Rolando E. Yebes, in his capacity as Provincial Governor, Hon. Francis H. Olvis, in his capacity as Vice- Governor and Presiding Officer of the Sangguniang Panlalawigan, Hon. Cecilia Jalosjos Carreon, Congresswoman, 1st Congressional District, Hon. Cesar G. Jalosjos, Congressman, 3rd Congressional District, and members of the Sangguniang Panlalawigan of the Province of Zamboanga Del Norte, namely, Hon. Seth Frederick P. Jalosjos, Hon. Fernando R. Cabigon, Jr., Hon. Uldarico M. Mejorada II, Hon. Edionar M. Zamoras, Hon. Edgar J. Baguio, Hon. Cedric L. Adriatico, Hon. Felixberto C. Bolando, Hon. Joseph Brendo C. Ajero, Hon. Norbideiri B. Edding, Hon. Anecito S. Darunday, Hon. Angelica J. Carreon and Hon. Luzviminda E. Torrino, petitioners, – versus – The Government of the Republic of the Philippines Peace Negotiating Panel [GRP], as represented by Hon. Rodolfo C. Garcia and Hon. Hermogenes Esperon, in his capacity as the Presidential Adviser of Peace Process, respondents. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 67

G.R. No. 183962 October 14, 2008

Ernesto M. Maceda, Jejomar C. Binay, and Aquilino L. Pimentel III, petitioners, – versus – The Government of the Republic of the Philippines Peace Negotiating Panel, represented by its Chairman Rodolfo C. Garcia, and the Moro Islamic Liberation Front Peace Negotiating Panel, represented by its Chairman Mohagher Iqbal, respondents. Franklin M. Drilon And Adel Abbas Tamano, petitioners-in- intervention. Sen. Manuel A. Roxas, petitioners-in-intervention. Municipality of Linamon duly represented by its Municipal Mayor Noel N. Deano, petitioners-in-intervention, The City of Isabela, Basilan Province, represented by Mayor Cherrylyn P. Santos-Akbar, petitioners-in-intervention. The Province of Sultan Kudarat, represented by Hon. Suharto T. Mangudadatu, in his capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in- intervention. Ruy Elias Lopez, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF, petitioner-in-intervention. Carlo B. Gomez, Gerardo S. Dilig, Nesario G. Awat, Joselito C. Alisuag and Richalex G. Jagmis, as citizens and residents of Palawan, petitioners-in-intervention. Marino Ridao and Kisin Buxani, petitioners-in-intervention. Muslim Legal Assistance Foundation, Inc (MUSLAF), respondent- in-intervention. Muslim Multi-Sectoral Movement for Peace and Development (MMMPD), respondent-in-intervention. 68 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

DECISION

Carpio Morales, J.:

Subject of these consolidated cases is the extent of the powers 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. Yet again, the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.1 The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same.

1 Eric Gutierrez and Abdulwahab Guialal, THE UNFINISHED JIHAD: THE MORO ISLAMIC LIBERATION FRONT AND PEACE IN MINDANAO IN REBELS, WARLORDS AND ULAMA: A READER ON MUSLIM SEPARATISM AND THE WAR IN SOUTHERN PHILIPPINES 275 (1999). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 69

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27, 1998. The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among others, the commitment of the parties to pursue 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 ongoing.2 Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.3 In response, then President Joseph Estrada declared and carried out an “all-out-war” against the MILF. When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with deep reservation, but when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP.4 2 Memorandum of Respondents dated September 24, 2008, p. 10. 3 Memorandum of Respondents dated September 24, 2008, pp. 10– 11.

4 Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE PROCESS 35–36 (2007). 70 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the parties signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its military actions.5 Formal peace talks between the parties were held in Tripoli, Libya from June 20–22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed “that the same be discussed further by the Parties in their next meeting.” A second round of peace talks was held in Cyberjaya, Malaysia on August 5–7, 2001 which ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between government forces and the MILF from 2002 to 2003. Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad’s position as chief peace negotiator was taken over by Mohagher Iqbal.6 In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008.

5 Memorandum of Respondents dated September 24, 2008, p. 12.

6 Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE PROCESS 40–41 (2007). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 71

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious “consensus” ever embodied in an instrument – the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962. Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr. On July 23, 2008, the Province of North Cotabato8 and Vice- Governor Emmanuel Piñol filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.9 Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish them the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.10 This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray 7 Composed of its Chairperson, Sec. Rodolfo Garcia, and members, Atty. Leah Armamento, Atty. Sedfrey Candelaria, with Mark Ryan Sullivan as Secretariat head. 8 Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piñol. 9 Rollo (G.R. No. 183591), pp. 3–33. 10 Supplement to Petition (with motion for leave) of August 11, 2008, rollo (G.R. No. 183591), pp. 143–162. 11 Rollo (G.R. No. 183752), pp. 3–28. 12 Represented by Mayor Celso L. Lobregat. 72 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void. By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public respondents and their agents to cease and desist from formally signing the MOA-AD.13 The Court also required the Solicitor General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD,14 to which she complied.15 Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent. The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos- Carreon, Rep. Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and without

13 Rollo (G.R. No. 183591), pp. 132–135; rollo (G.R. No. 183752), pp. 68–71. 14 Rollo (G.R. No. 183591), pp. 130–131; rollo (G.R. No. 183752), pp. 66–67. 15 Rollo (G.R. No. 183752), pp. 173–246. 16 Represented by Mayor Lawrence Lluch Cruz. 17 Represented by Governor Rolando Yebes. 18 Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico Mejorada II, Edionar Zamoras, Edgar Baguio, Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito Darunday, Angelica Carreon, and Luzviminda Torrino. 19 Rollo (G.R. No. 183951), pp. 3–33. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 73 operative effect, and that respondents be enjoined from executing the MOA-AD. On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition,20 docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman Mohagher Iqbal. Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their respective Comments-in-Intervention. By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the petitions, while some of petitioners submitted their respective Replies. Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review the MOA-AD and pursue further negotiations to address

20 Rollo (G.R. No. 183962), pp. 3–20. 21 Represented by Mayor Cherrylyn Santos-Akbar. 22 Represented by Gov. Suharto Mangudadatu. 23 Represented by Mayor Noel Deano. 74 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I the issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents’ motion was met with vigorous opposition from petitioners. The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues: 1. 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 Agreement (MOA); and (ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that consultation has become fait accompli with the finalization of the draft; 2. Whether the constitutionality and the legality of the MOA is ripe for adjudication; 3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5; 4. Whether there is a violation of the people’s right to information on matters of public concern (1987 Constitution, Article III, Section 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II, Section 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;] If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy; 5. Whether by signing 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; PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 75

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)[;] If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the Philippines; 6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable question; and 7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of the Philippines.24 The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in- intervention against the MOA-AD, as well as the two comments- in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA. The MOA-AD identifies the Parties to it as the GRP and the MILF. Under the heading “Terms of Reference” (TOR), the MOA- AD includes not only four earlier agreements between the GRP and MILF, but also two agreements between the GRP and the 24 Rollo (G.R. No. 183591), pp. 451–453. 76 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos. The MOA-AD also identifies as TOR two local statutes – the organic act for the Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and several international law instruments – the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others. The MOA-AD includes as a final TOR the generic category of “compact rights entrenchment emanating from the regime of dar-ul-mua’hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device.” During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The 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.27 This way of viewing the world, however, 25 Republic Act No. 6734, as amended by Republic Act No. 9054 entitled AN ACT TO STRENGTHEN AND EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED AN ACT OF PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AS AMENDED.

26 Republic Act No. 8371, AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES, October 29, 1997.

27 Cesar Adib Majul, THE GENERAL NATURE OF ISLAMIC LAW AND ITS APPLICATION IN THE PHILIPPINES, lecture delivered as part of the Ricardo Paras Lectures, a series jointly sponsored by the Commission on Bar Integration of the Supreme Court, the Integrated Bar of the Philippines and the U.P. Law Center, September 24, 1977. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 77 became more complex through the centuries as the Islamic world became part of the international community of nations. As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul- harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim territories. For instance, areas like 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.28 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 partake 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 framework that elaborates the principles declared in the [MOA-AD].”29 The MOA-AD states that the Parties “HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS,” and starts with its main body.

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

28 Ibid., vide M.A. Muqtedar Khan Ph.D., IMMIGRANT AMERICAN MUSLIMS AND THE MORAL DILEMMAS OF CITIZENSHIP, , visited on September 18, 2008, and Syed Shahabuddin, MUSLIM WORLD AND THE CONTEMPORARY IJMA’ ON RULES OF GOVERNANCE - ii visited on September 18, 2008. 29 MOA-AD Terms of Reference. 78 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

A. Concepts and Principles 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.30 Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not only “Moros” as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the

30 MOA-AD, Concepts and Principles, paragraph 1. 31 A traditional Muslim historical account of the acts of Shariff Kabungsuwan is quoted by historian Cesar Adib Majul in his book, Muslims in the Philippines (1973): After a time it came to pass that Mamalu, who was the chief man next to Kabungsuwan, journeyed to Cotabato. He found there that many of the people had ceased to regard the teachings of the Koran and had fallen into evil ways. Mamamlu sent to Kabungsuwan word of these things. Kabungsuwan with a portion of his warriors went from Malabang to Cotabato and found that the word sent to him by Mamamlu was true. Then he assembled together all the people. Those of them, who had done evilly and disregarded the teachings of the Koran thenceforth, he drove out of the town into the hills, with their wives and children. Those wicked one who were thus cast out were the beginnings of the tribes of the Tirurais and Manobos, who live to the east of Cotabato in the country into which their evil forefathers were driven. And even to this day they worship not God; neither do they obey the teachings of the Koran x x x. But the people of Kabungsuwan, who regarded the teachings of the Koran and lived in fear of God, prospered and increased, and we Moros of today are their descendants. (Citation omitted, emphasis supplied). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 79 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.32 Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.33 The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or “karajaan/ kadatuan” resembling a body politic endowed with all the elements of a nation-state in the modern sense.34 The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom was supreme over the others.35 The MOA-AD goes on to describe the Bangsamoro people as “the ‘First Nation’ with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.” The term “First Nation” is of Canadian origin referring to the indigenous peoples of that territory, particularly those

32 Id. paragraph 2. 33 Id. paragraph 3. 34 Id. paragraph 4.

35 Francisco L. Gonzales, SULTANS OF A VIOLENT LAND, in Rebels, Warlords and Ulama: A Reader on Muslim Separatism and the War in Southern Philippines 99, 103 (1999). 80 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I known as Indians. In Canada, each of these indigenous peoples is equally entitled to be called “First Nation,” hence, all of them are usually described collectively by the plural “First Nations.”36 To that extent, the MOA-AD, by identifying the Bangsamoro people as “the First Nation” – suggesting its exclusive entitlement to that designation – departs from the Canadian usage of the term. The MOA-AD then mentions for the first time the “Bangsamoro Juridical Entity” (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.37

B. Territory The territory of the Bangsamoro 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.38 More specifically, the core of the BJE is defined as the present geographic area of the ARMM – thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39

36 The Charter of the Assembly of First Nations, the leading advocacy group for the indigenous peoples of Canada, adopted in 1985, begins thus: WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN CANADA HAVING DECLARED: THAT our peoples are the original peoples of this land having been put here by the Creator; x x x. 37 Id. paragraph 6. 38 MOA-AD, Territory, paragraph 1. 39 Id. paragraph 2(c). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 81

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than 12 months following the signing of the MOA-AD.40 Category B areas, also called “Special Intervention Areas,” on the other hand, are to be subjected to a plebiscite 25 years from the signing of a separate agreement – the Comprehensive Compact.41 The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its “internal waters,” defined as extending 15 kilometers from the coastline of the BJE area;42 that the BJE shall also have “territorial waters,” which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial waters, the BJE and the “Central Government” (used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural resources.43 Notably, the jurisdiction over the internal waters is not similarly described as “joint.” The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the latter, through production sharing and economic cooperation agreement.44 The activities which the Parties are allowed to conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of shipping and fishing activities, and the enforcement of police and safety measures.45 There is

40 Id. paragraph 2(d). 41 Id. paragraph 2(e). 42 Id. paragraph 2(f). 43 Id. paragraph 2(g)(1). 44 Id. paragraph 2(h). 45 Id. paragraph 2(i). 82 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I no similar provision on the sharing of minerals and allowed activities with respect to the internal waters of the BJE. C. Resources The MOA-AD states that the BJE is free to enter into any economic cooperation and 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 GRP. The BJE may also enter into environmental cooperation agreements.46 The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also bound to “take necessary steps to ensure the BJE’s participation in international meetings and events” like those of the ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral domain.47 With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE “as the party having control within its territorial jurisdiction.” This right carries the proviso that, “in times of national emergency, when public interest so requires,” the Central Government may, for a fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the operation of such resources.48 The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE.49

46 MOA-AD, Resources, paragraph 4. 47 Ibid. 48 Id. paragraph 5. 49 Id. paragraph 6. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 83

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as mutually determined by the Parties.50 The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including those issued by the present ARMM.51

D. Governance The MOA-AD binds the Parties to invite a multinational third party to observe and monitor the implementation of the Comprehensive Compact. This compact is to embody the “details for the effective enforcement” and “the mechanisms and modalities for the actual implementation” of the MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way affect the status of the relationship between the Central Government and the BJE.52 The “associative” relationship between the Central Government and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as “associative,” characterized by shared authority and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact. The MOA-AD provides that its provisions requiring “amendments to the existing legal framework” shall take effect 50 Id. paragraph 7. 51 Id. paragraph 9. 52 MOA-AD, Governance, paragraph 3. 84 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non- derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of the present controversy hangs on the legality of this provision. The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and banking, 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. As stated early on, the MOA-AD was set to be signed on August 5, 2008, by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as “the representatives of the Parties,” meaning the GRP and MILF themselves, and not merely of the negotiating panels.53 In addition, the signature page of the MOA-AD states that it is “WITNESSED BY” Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, “ENDORSED BY” Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED “IN THE PRESENCE OF” Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato’ Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008. Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY.

53 “IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,] hereby affix their signatures.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 85

IV. PROCEDURAL ISSUES

A. Ripeness The power of judicial review is limited to actual cases or controversies.54 Courts decline to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions.55 The 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.56 An 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. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.57 The Court can decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for judicial determination.58 Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.59 For a case to be considered ripe for adjudication, it is a prerequisite that something had then been accomplished or performed by either

54 Vide 1987 CONSTITUTION, Article VIII, Section 1. 55 Vide Muskrat v. US, 219 U.S. 346 (1911). 56 Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968). 57 Didipio Earth Savers’ Multi-Purpose Association, Incorporated (DESAMA) v. Gozun, G.R. No. 157882, March 30, 2006, 485 SCRA 286. 58 Vide US v. Muskrat, 219 U.S. 346, 357 (1902). 59 Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427–428 (1998). 86 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

branch before a court may come into the picture,60 and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action.61 He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.62 The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning that The unsigned MOA-AD 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 MOA-AD remains to be a proposal that does not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied with. x x x x x x x In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on hypothetical or feigned constitutional problems or interests with no concrete bases. Considering the preliminary character of the MOA-AD, there are no concrete acts that could possibly violate petitioners’ and intervenors’ rights since the acts complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and intervenors’ perceived injury, if at all, is merely imaginary and illusory apart from being unfounded and based on mere conjectures. (Underscoring supplied) The Solicitor General cites63 the following provisions of the MOA-AD:

60 Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901–902 (2003) (citation omitted). 61 Vide Warth v. Seldin, 422 U.S. 490, 511 (1975). 62 Vide Id. at 526. 63 Solicitor General’s Comment to G.R. No. 183752, pp. 9–11. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 87

TERRITORY x x x x 2. Toward this end, the Parties enter into the following stipulations: x x x x d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within 12 months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the “Annex”). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within 15 months from the signing of the MOA-AD. x x x x GOVERNANCE x x x x 7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. 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 with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.64 (Underscoring supplied) The Solicitor General’s arguments fail to persuade.

64 MOA-AD, pp. 3–7, 10. 88 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held: x x x [B]y the mere enactment of the questioned law or 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.66 In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the challenge to the constitutionality of the school’s 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.68 That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United States,69 decided in 1992, the United States Supreme Court held that the action by the State of New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996, because the parties agreed that New York had to take immediate action to avoid the provision’s consequences.70 65 391 Phil. 43 (2000). 66 Id. at 107–108. 67 530 U.S. 290 (2000). 68 Id. at 292. 69 505 U.S. 144 (1992). 70 Id. at 175. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 89

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari 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 excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.72 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 excludes another from the use or enjoyment of a right or office to which such other is entitled.73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.74 The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said executive order requires that “[t]he government’s policy framework for peace, including the systematic approach and the administrative structure for carrying out the comprehensive peace process x x x be governed by this Executive Order.”76 The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting the local government units or communities affected, nor informing them of the proceedings. As will be discussed in

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

72 Vide RULES OF COURT, Rule 65, Sections 1 and 2. 73 Vide Rules of Court, Rule 65, Section 3. 74 Tañada v. Angara, 338 Phil. 546, 575 (1997).

75 Entitled DEFINING POLICY AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENT’S PEACE EFFORTS which reaffirms and reiterates Executive Order No. 125 of September 15, 1993.

76 EXECUTIVE ORDER NO. 3, (2001), Section 1. 90 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I greater detail later, such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3. Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. 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. Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later. As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.77

B. Locus Standi For a party to have locus standi, one must allege “such a personal stake 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 questions.”78 Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question frequently arises as to this interest in the constitutional question raised.79

77 Vide Tañada v. Angara, supra note 74. 78 Baker v. Carr, 369 U.S. 186 (1962).

79 Vicente V. Mendoza, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2004). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 91

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.80 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.81 For a taxpayer, 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.82 The Court retains discretion whether or not to allow a taxpayer’s suit.83 In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.84 An organization may be granted standing to assert the rights of its members,85 but the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe it with standing.86 80 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003). 81 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 223. 82 Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995). 83 Macasiano v. NHA, G.R. No. 107921, July 1, 1993, 224 SCRA 236. 84 Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 328– 329 (2000) citing Phil. Constitution Ass’n., Inc. v. Mathay, et al., 124 Phil. 890 (1966). 85 Vide NAACP v. Alabama, 357 U.S. 449 (1958). 86 Francisco, Jr. v. The House of Representatives, supra note 80. 92 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the other LGUs.87 Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing intervention,88 such as a legal interest in the matter in litigation, or in the success of either of the parties. In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has exercised, highlighted in the case of David v. Macapagal- Arroyo,89 where technicalities of procedure were brushed aside, the constitutional issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in view of their seriousness, novelty and weight as precedents.90 The Court’s 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 Court, in keeping with its duty under the Constitution to determine whether the other branches of government have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed aside technical rules of procedure.91 In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that they, as LGUs, would suffer as their territories, 87 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736. 88 Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) citing Gibson v. Judge Revilla, 180 Phil. 645 (1979). 89 Supra note 81. 90 Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 (2000). 91 Tatad v. Secretary of Energy, 346 Phil. 321 (1997). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 93 whether in whole or in part, are to be included in the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners’ legal standing is thus beyond doubt. In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens and taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds. The fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them standing. Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be given legal standing. Their 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. With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce compliance by respondents of the public’s constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor. With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural technicality on locus standi given the paramount public interest in the issues at hand. 94 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government organization 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 MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to clothe them with standing.

B. Mootness Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that “[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA.”92 In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP Peace Panel.93 In David v. Macapagal-Arroyo,94 this Court 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 Constitution;95 (b) the situation is of exceptional character and paramount public interest is involved;96 (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;97 and (d) the case is capable of repetition yet evading review.98 92 Vide Compliance of September 1, 2008 of respondents. 93 Vide Manifestation of September 4, 2008 of respondents. 94 Supra note 81. 95 Id. citing Province of Batangas v. Romulo, supra note 87. 96 Id. citing Lacson v. Perez, 410 Phil. 78 (2001). 97 Id. citing Province of Batangas v. Romulo, supra note 87. 98 Id. citing Albaña v. Comelec, 478 Phil. 941 (2004); Chief Supt. Acop v. Guingona Jr., 433 Phil. 62 (2002); SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482 (2004). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 95

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity complained of by the defendant or doer. Thus, 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 seeks damages or prays for injunctive relief against the possible recurrence of the violation.99 The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds cited above in David are just as applicable in the present cases as they were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the merits, supervening events that would ordinarily have rendered the same moot notwithstanding.

Petitions not mooted Contrary then to the asseverations of respondents, the non- signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court’s issuance of a Temporary Restraining Order. Contrary too to respondents’ position, the MOA-AD cannot be considered a mere “list of consensus points,” especially given its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications of these “consensus points,” foremost of which is the creation of the BJE. In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect 99 US v. W.T. Grant Co., 345 U.S. 629 (1953); US v. Trans-Missouri Freight Assn., 166 U.S. 290, 308–310 (1897); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43 (1944); Gray v. Sanders, 372 U.S. 368, 376 (1963); Defunis v. Odegaard, 416 U.S. 312 (1974). 100 Supra note 87. 101 G.R. No. 178920, October 15, 2007, 536 SCRA 290. 96 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but to other ongoing and future negotiations and agreements necessary for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-AD,102 the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding.

Petitions are imbued with paramount public interest There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country’s territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity. Respondents cite Suplico v. NEDA, et al.103 where the Court did not “pontificat[e] on issues which no longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole.” The 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 network involving a one-time contractual relation between two parties – the government and a private foreign corporation. As the issues therein involved specific government procurement policies and standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and parties involved in the controversy.

102 Chavez v. PCGG, 366 Phil. 863, 871 (1999). 103 G.R. No. 178830, July 14, 2008. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 97

The MOA-AD is part of a series of agreements In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May 2002. Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that “no matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD],” mootness will not set in in light of the terms of the Tripoli Agreement 2001.

Need to formulate principles- guidelines Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the Court notes the word of the Executive Secretary that the government “is committed to securing an agreement that is both constitutional and equitable because that is the only way that long-lasting peace can be assured,” it is minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain. Respondents invite the Court’s attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of “capable of repetition yet evading review” can override mootness, “provided the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their

104 Supra note 98. 98 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I issuance.” They contend that the Court must have jurisdiction over the subject matter for the doctrine to be invoked. The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions that need to be resolved.105 At all events, the Court has jurisdiction over most if not the rest of the petitions. Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had done in a number of landmark cases.106 There is a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same problem in the future as respondents’ 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 Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for themselves, copies of the MOA-AD.

V. S UBSTANTIVE ISSUES

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

105 Ortega v. Quezon City Government, G.R. No. 161400, September 2, 2005, 469 SCRA 388. 106 Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III, 343 Phil. 184 (1997); Chief Superintendent Acop v. Guingona, Jr., supra note 98; Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22, 2006, 499 SCRA 434, 447. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 99

1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD? 2. Do the contents of the MOA-AD violate the Constitution and the laws? On the First Substantive Issue Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the Bill of Rights:

SEC. 7. The right of the people to information on matters of public concern shall be recognized. Access 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 citizen, subject to such limitations as may be provided by law.107 As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and inspect public records, a right which was eventually accorded constitutional status. The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized as a self-executory constitutional right.109 In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records is predicated on the right of the people to acquire information on matters of public concern since, undoubtedly, in a democracy, the public has a legitimate interest in matters of social and political significance.

107 CONSTITUTION, Article III, Section 7. 108 80 Phil. 383 (1948). 109 Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530. 110 162 Phil. 868 (1976). 100 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nation’s problems, nor a meaningful democratic decision making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed: “Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases.” x x x111 In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of general interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the nation112 so that they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well- informed public that a government remains responsive to the changes desired by the people.113

The MOA-AD is a matter of public concern That the subject of the information sought in the present cases is a matter of public concern114 faces no serious challenge. In

111 Baldoza v. Dimaano, supra at 876. 112 Legaspi v. Civil Service Commission, supra note 109. 113 Chavez v. PCGG, 360 Phil 133, 164 (1998). 114 In Legaspi v. Civil Service Commission, supra note 109 at 541, it was held that: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 101 fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous cases, the Court found that the regularity of real estate transactions entered in the Register of Deeds,116 the need for adequate notice to the public of the various laws,117 the civil service eligibility of a public employee,118 the proper management of GSIS funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses’ alleged ill-gotten wealth,120 and the identity of party-list nominees,121 among others, are matters of public concern. Undoubtedly, the MOA- AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of the public at large. Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled: x x x [T]he right to information “contemplates inclusion of negotiations leading to the consummation of the transaction.” Certainly, a consummated contract is not a requirement for

because such matters naturally arouse the interest of an ordinary citizen. 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. 115 Respondents’ Comment of August 4, 2008, p. 9. 116 Subido v. Ozaeta, supra note 108. 117 Tañada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Tañada, v. Hon. Tuvera, 230 Phil. 528 (1986). 118 Legaspi v. Civil Service Commission, supra note 109. 119 Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170 SCRA 256. 120 Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102. 121 Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 177271, May 4, 2007, 523 SCRA 1. 102 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects. Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. 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.”122 (Emphasis and italics in the original) Intended as a “splendid symmetry”123 to the right to information under the Bill of Rights is the policy of public disclosure under Section 28, Article II of the Constitution reading:

SEC. 28. 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.124 The policy of full public disclosure enunciated in above- quoted Section 28 complements the right of access to information on matters of public concern found in the Bill of Rights. The right to information guarantees the right of the people to

122 Chavez v. Public Estates Authority, 433 Phil. 506, 532–533 (2002).

123 Vide V RECORD, CONSTITUTIONAL COMMISSION 26–28 (September 24, 1986) which is replete with such descriptive phrase used by Commissioner Blas Ople.

124 CONSTITUTION, Article II, Section 28. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 103

demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands.125 The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with the people’s right to know as the centerpiece. It is a mandate of the State to be accountable by following such policy.126 These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable to the people.127 Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose: MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after Congress shall have provided it. MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to be enacted by Congress, Mr. Presiding Officer.128 The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening. MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to implement? MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interest are modified by the clause “as may be provided by law.”

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

126 Vide Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS 155 (1995). 127 Vide Chavez v. Public Estates Authority, 439 Phil. 506 (2002).

128 V RECORD, CONSTITUTIONAL COMMISSION 25 (September 24, 1986). 104 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground national interest? MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy.129 (Emphasis supplied) Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this principle, it is merely directed to provide for “reasonable safeguards.” The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader130 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. Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such policy. An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the

129 V RECORD, CONSTITUTIONAL COMMISSION 28–29 (September 24, 1986). The phrase “safeguards on national interest” that may be provided by law was subsequently replaced by “reasonable conditions,” as proposed by Commissioner Davide [vide V Record, CONSTITUTIONAL COMMISSION 30 (September 24, 1986)]. 130 In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 331, the Court stated: x x x The duty to disclose covers only 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. (Underscoring supplied) PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 105

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 people’s will.131 Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback mechanisms. MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government provide feedback mechanisms so that the people can participate and can react where the existing media facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the government implementing operational mechanisms. MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message and a feedback, both ways. x x x x MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence? I think when we talk about the feedback network, we are not talking about public officials but also network of private business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we are afraid that there will be another OMA in the making.132 (Emphasis supplied) The imperative of a public consultation, as a species of the right to information, is evident in the “marching orders” to respondents. The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil society to the 131 Valmonte v. Belmonte, Jr., supra note 119.

132 V RECORD, CONSTITUTIONAL COMMISSION 28, 30 (September 24, 1986). 133 Supra note 55. 106 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I comprehensive peace process by institutionalizing the people’s participation. One 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.”134 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 mobilization and facilitation of people’s participation in the peace process.”135 Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate “continuing” consultations, contrary to respondents’ position that plebiscite is “more than sufficient consultation.” 136 Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to “[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace process.”137 E.O. No. 3 mandates the establishment of the NPF to be “the principal forum for the PAPP to consult with and seek advi[c]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 government[-]civil society dialogue and consensus- building on peace agenda and initiatives.”138

134 EXECUTIVE ORDER NO. 3 (2001), Section 3(a).

135 EXECUTIVE ORDER NO. 3 (2001), Section 4(b). 136 Respondents’ Memorandum of September 24, 2008, p. 44.

137 EXECUTIVE ORDER No. 3 (2001), Section 5(b), paragraph 6.

138 EXECUTIVE ORDER No. 3 (2001), Section 8, see also Section 10. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 107

In fine, E.O. No. 3 establishes petitioners’ right to be consulted on the peace agenda, as a corollary to the constitutional right to information and disclosure. PAPP Esperon committed grave abuse of discretion The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. 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. The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require him to comply with the law and discharge the functions within the authority granted by the President.139 Petitioners are not claiming a seat at the negotiating table, contrary to respondents’ retort in justifying the denial of petitioners’ right to be consulted. Respondents’ stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people’s participation. Such disregard of the express mandate of the President is not much different from superficial conduct toward token provisos that border on classic lip service.140 It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. As for respondents’ invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound reason when contrasted with E.O. No. 3’s explicit 139 Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7, 1989, 177 SCRA 374, 382–384 where it was held that the Omnibus Investment Code of 1987 mandates the holding of consultations with affected communities, whenever necessary, on the acceptability of locating the registered enterprise within the community. 140 In their Memorandum, respondents made allegations purporting to show that consultations were conducted on August 30, 2001 in Marawi City and Iligan City, on September 20, 2001 in Midsayap, Cotabato, and on January 18–19, 2002 in Metro Manila. (Memorandum of September 24, 2008, p. 13) 108 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I provisions on continuing consultation and dialogue on both national and local levels. The executive order even recognizes the exercise of the public’s right even before the GRP makes its official recommendations or before the government proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the people through dialogue. AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally complying with the Court’s August 4, 2008 Resolution, without a prayer for the document’s disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam. Petitioners’ assertion that the Local Government Code (LGC) of 1991 declares it a State policy to “require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people’s organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions”142 is well-taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy: Prior Consultations Required. – No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That 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 Constitution.143 (Italics and underscoring supplied) In Lina, Jr. v. Hon. Paño,144 the Court held that the above- stated policy and above-quoted provision of the LGU apply only 141 Cf. Chavez v. Public Estates Authority, supra note 120.

142 REPUBLIC ACT NO. 7160, Section 2(c).

143 REPUBLIC ACT NO. 7160, Section 27. 144 416 Phil. 438 (2001). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 109 to national programs or projects which are to be implemented in a particular local community. Among 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.145 The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people,146 which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. With respect to the indigenous cultural communities/ indigenous peoples (ICCs/IPs), whose interests are represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect their rights, lives and destinies.147 The MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act,148 which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs. Notably, the IPRA 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. The recognition of the ancestral domain is the raison d’etre of the MOA-AD, without which all other stipulations or “consensus points” necessarily must fail. In proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, 145 Id.; Vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243, November 29, 2006, 508 SCRA 498; Cf. Bangus Fry Fisherfolk v. Lanzanas, 453 Phil. 479 (2002). 146 Vide MOA-AD “Concepts and Principles,” paragraphs 2 and 7 in relation to “Resources,” paragraph 9 where vested property rights are made subject to the cancellation, modification and review by the Bangsamoro Juridical Entity.

147 REPUBLIC ACT NO. 8371 or “THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997,” Section 16. 148 Id. Section 3(g), Chapter VIII, inter alia. 110 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I respondents clearly transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal framework, 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 cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them.149

On the Second Substantive Issue With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument will be considered later. For now, the Court shall pass upon how.

The MOA-AD is inconsistent with the Constitution and laws as presently worded. In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA- 149 Tañada v. Tuvera, No. L-63915, December 29, 1986, 146 SCRA 446, 456. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 111

AD, namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind. Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA- AD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government. 4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring supplied) The nature of the “associative” relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of “association” in international law, and the MOA-AD – by its inclusion of international law instruments in its TOR– placed itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term “associative” in the MOA-AD. Keitner and Reisman state that [a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. x x x150 (Emphasis and underscoring supplied)

150 C.I. Keitner and W.M. Reisman, FREE ASSOCIATION: THE UNITED STATES EXPERIENCE, 39 Tex. Int’l L.J. 1 (2003). 112 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,151 are associated states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership. According 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 extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.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 (U.S. government) regards as relating to or affecting either government. In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as if they were part of U.S. territory. The U.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 U.S. constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation’s 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 U.S. associated

151 “The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the Marshall Islands, and the Northern Mariana Islands, which extend east of the Philippines and northeast of Indonesia in the North Pacific Ocean.” (Ibid.) PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 113 states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence.152 In international practice, the “associated state” arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.153 Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJE’s capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE’s participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE’s 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 U.S. government on any foreign affairs matter affecting them. These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of 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”

152 H. Hills, FREE ASSOCIATION FOR MICRONESIA AND THE MARSHALL ISLANDS: A POLITICAL STATUS MODEL, 27 U. Haw. L. Rev. 1 (2004).

153 Henkin, et al., INTERNATIONAL LAW: CASES AND MATERIALS, 2nd ed., 274 (1987). 114 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I 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. Even the mere concept animating many of the MOA-AD’s provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

SEC. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras 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 framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

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,154 namely, a permanent

154 Convention on Rights and Duties of States, December 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 115 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. Article X, Section 18 of the Constitution provides that “[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.” (Emphasis supplied) As reflected above, 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. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite – Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal – are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the above- mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE. 116 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution since that provision defines the powers of autonomous regions as follows:

SEC. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Underscoring supplied) Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: “The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 117 against the Government of the Republic of the Philippines x x x.” Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary155 instructs: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. (Emphasis and underscoring supplied) Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That constitutional provision states: “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.” (Underscoring supplied) An associative arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE 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 national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which are RA No. 9054156

155 G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.

156 AN ACT TO STRENGTHEN AND EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED ‘A N ACT PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO,’ AS AMENDED, MARCH 31, 2001. 118 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I or the Organic Act of the ARMM, and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of “Bangsamoro people” used in the MOA-AD. Paragraph 1 on Concepts and Principles states: 1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros.” The Bangsamoro 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 conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring supplied) This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as follows: As used in this Organic Act, the phrase “indigenous cultural community” refers to Filipino citizens residing in the autonomous region who are: (a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of the national community; and (b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions.

157 AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES, OCTOBER 29, 1997. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 119

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-AD’s manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1 of TERRITORY, the Parties simply agree that, subject to the delimitations in the agreed Schedules, “[t]he Bangsamoro 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.” Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof:

SEC. 52. Delineation Process. – The identification and delineation of ancestral domains shall be done in accordance with the following procedures: x x x x b) Petition for Delineation. – The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs; c) Delineation Proper. – The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation 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 Ancestral Domain Claims 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 ICCs/IPs in the concept of owners which shall be any one of the following authentic documents: 120 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

1) Written accounts of the ICCs/IPs customs and traditions; 2) Written accounts of the ICCs/IPs political structure and institution; 3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages; 4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs; 5) Survey plans and sketch maps; 6) Anthropological data; 7) Genealogical surveys; 8) Pictures and descriptive histories of traditional communal forests and hunting grounds; 9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and 10) Write-ups of names and places derived from the native dialect of the community. e) Preparation of Maps. – On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein; f) Report of Investigation and Other Documents. – A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP; g) Notice and Publication. – A copy of each document, including a translation in the native language of the ICCs/ IPs concerned shall be posted in a prominent place therein for at least 15 days. A copy of the document shall also be posted at the local, provincial and regional offices of the PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 121

NCIP, and shall be published in a newspaper of general circulation once a week for two consecutive weeks to allow other claimants to file opposition thereto within 15 days from date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available; h) Endorsement to NCIP. – Within 15 days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office 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. x x x x To remove all doubts about the irreconcilability of the MOA- AD with the present legal system, a discussion of not only the Constitution and domestic statutes, but also of international law is in order, for

Article II, Section 2 of the Constitution states that the Philippines “adopts the generally accepted principles of international law as part of the law of the land.” 122 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent whose deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road Signs and Signals. International law has long recognized 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 question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that “the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond ‘convention’ and is considered a general principle of international law.” Among the conventions referred to are the International Covenant on Civil and Political Rights161 and the International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 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.” The people’s right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

158 90 Phil. 70, 73–74 (1951). 159 177 Phil. 160, 178–179 (1979). 160 2 S.C.R. 217 (1998). 161 999 U.N.T.S. 171 (March 23, 1976). 162 993 U.N.T.S. 3 (January 3, 1976). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 123

(ii) Scope of the Right to Self-determination 126. The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination – a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. x x x. External self-determination can be defined as in the following statement from the Declaration on Friendly Relations, supra, as The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. (Emphasis added) 127. The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states. x x x x (Emphasis, italics and underscoring supplied) The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and – less definitely but asserted by a number of commentators – is blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately held that the 124 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I population of Quebec 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 make political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent positions therein. The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed an International Committee 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. The Committee stated the rule as follows: x x x [I]n the absence of express provisions in international treaties, the right of disposing of national territory is essentially an attribute of the sovereignty of every State. Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State which is definitively constituted. A dispute between two States concerning such a question, under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other solution would amount to an infringement of

163 League of Nations Official Journal, Special Supp. No. 3 (October 1920). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 125

sovereign rights of a State and would involve the risk of creating difficulties and a lack 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. (Emphasis and underscoring supplied) The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to the domestic jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground for departing from the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a considerable time, the conditions required for the formation of a sovereign State did not exist. 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. The 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. The Committee, 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. Turning 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. These groups are regarded as “indigenous” since they are the living descendants of pre- invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed 126 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I by settler societies born of the forces of empire and conquest.164 Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada. As 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,165 but they do have rights amounting to what was discussed above as the right to internal self-determination. In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit:

ARTICLE 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

ARTICLE 4 Indigenous peoples, in exercising their right to self- determination, have the right to autonomy or self-government

164 Lorie M. Graham, RESOLVING INDIGENOUS CLAIMS TO SELF-DETERMINATION, 10 ILSA J. Int’l & Comp. L. 385 (2004). Vide S. James Anaya, SUPERPOWER ATTITUDES TOWARD INDIGENOUS PEOPLES AND GROUP RIGHTS, 93 Am. Soc’y Int’l L. Proc. 251 (1999): “In general, the term indigenous is used in association with groups 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.”

165 Catherine J. Iorns, INDIGENOUS PEOPLES AND SELF DETERMINATION: CHALLENGING STATE SOVEREIGNTY, 24 Case W. Res. J. Int’l L. 199 (1992). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 127

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

ARTICLE 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 equivalent to “internal self-determination.”166 The extent of self-determination provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted hereunder:

ARTICLE 8 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. 2. States shall provide effective mechanisms for prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; 166 Federico Lenzerini, “SOVEREIGNTY REVISITED: INTERNATIONAL LAW AND PARALLEL SOVEREIGNTY OF INDIGENOUS PEOPLES,” 42 Tex. Int’l L.J. 155 (2006). Vide Christopher J. Fromherz, Indigenous Peoples’ Courts: Egalitarian Juridical Pluralism, Self-Determination, and the United Nations Declaration on the Rights of Indigenous Peoples, 156 U. Pa. L. Rev. 1341 (2008): “While Australia and the United States made much of the distinction between ‘self-government’ and ‘self-determination’ on September 13, 2007, the U.S. statement to the UN on May 17, 2004, seems to use these two concepts interchangeably. And, indeed, under the DRIP [Declaration on the Rights of Indigenous Peoples], all three terms should be considered virtually synonymous. Self- determination under the DRIP means ‘internal self-determination’ when read in conjunction with Article 46, and ‘self-government,’ articulated in Article 4, is the core of the ‘self-determination.’” 128 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

ARTICLE 21 1. 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. 2. States shall take 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.

ARTICLE 26 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. 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 acquired. 3. 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. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 129

ARTICLE 30 1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2. States shall undertake 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.

ARTICLE 32 1. 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. 2. 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, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

ARTICLE 37 1. 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. 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples 130 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

contained in treaties, agreements and other constructive arrangements.

ARTICLE 38 States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration. Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary international law – a question which the Court need not definitively resolve here – the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the different States. There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like 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 people’s identity is acknowledged 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. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Moreover, the UN DRIP, 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. All the rights recognized in that document are qualified in Article 46 as follows: PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 131

1. Nothing in this Declaration may 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 Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary. It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD 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 take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for convenience: 7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary changes to the legal framework are effected. While the word “Constitution” is not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term “legal framework” is certainly broad enough to include the Constitution. 132 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum of Instructions From The President dated March 1, 2001, which states that the “negotiations shall be conducted in accordance with x x x the principles of the sovereignty and territorial integrity of the Republic of the Philippines.” (Emphasis supplied) Establishing an associative relationship between the BJE and the Central Government is, for the reasons already discussed, a preparation for independence, or worse, an implicit acknowledgment of an independent status already prevailing. Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid, as discussed below. The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states that there shall be established Government Peace Negotiating 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.” These negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations. It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No. 3 collectively refers to as the “Paths to Peace,” is the pursuit of social, economic, and political reforms which may require new legislation or even constitutional amendments. Section 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,167 states:

167 DEFINING THE APPROACH AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENT’S COMPREHENSIVE PEACE EFFORTS, September 15, 1993. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 133

SEC. 4. The Six Paths to Peace. – The components of the comprehensive peace process comprise the processes known as the “Paths to Peace.” These component processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following: a. Pursuit of Social, Economic and Political Reforms. This 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. This may require administrative action, new legislation or even constitutional amendments. x x x x (Emphasis supplied) The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to “think outside the box,” so to speak. Hence, they negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however, all be accommodated within the present legal framework, and which thus would require new legislation and constitutional amendments. The inquiry on the legality of the “suspensive clause,” however, cannot stop here, because it must be asked whether the President herself may exercise the power delegated to the GRP Peace Panel under Executive Order No. 3, Section 4(a). The 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 require new legislation and constitutional amendments, or should the reforms be restricted only to those solutions which the present laws allow? The answer to this question requires a discussion of 134 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I the extent of the President’s power to conduct peace negotiations. That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary,168 in issue was the authority of the President to declare a state of rebellion – an authority which is not expressly provided for in the Constitution. The Court held thus: In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8–7 margin, upheld the President’s power to forbid the return of her exiled predecessor. The rationale for the majority’s ruling rested on the President’s x x x unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 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 executive power. Thus, the President’s authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring supplied) Similarly, the President’s power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public

168 466 Phil. 482, 519–520 (2004). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 135

peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.169 As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation’s constitutional structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit: x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of the political environment, even where state- building is undertaken through technical electoral assistance and institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies. The design of a constitution and its constitution-making process can play an important role in the political and governance transition. Constitution-making 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. The constitution can be partly a peace agreement and partly a framework setting up the rules by which the new democracy will operate.170 In the same vein, Professor Christine Bell, 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 demilitarization and demobilization is by linking them to new constitutional structures addressing governance, elections, and legal and human rights institutions.171 169 CONSTITUTION, Article VII, Section 18.

170 Kirsti Samuels, POST-CONFLICT PEACE-BUILDING AND CONSTITUTION-MAKING, 6 Chi. J. Int’l L. 663 (2006).

171 Christine Bell, PEACE AGREEMENTS: THEIR NATURE AND LEGAL STATUS, 100 Am. J. Int’l L. 373 (2006). 136 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions172 is the framers’ intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari. MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they are not covered by the other speakers. I have only two questions. I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well; it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we have to go into something new? MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao. This is a good first step, but there is no question that this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by state policy.173 (Emphasis supplied) The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their

172 CONSTITUTION, Article X, Sections 15–21.

173 III RECORD, CONSTITUTIONAL COMMISSION, 180 (August 11, 1986). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 137 implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities. The 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 Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to the electorate the question of calling such a convention. While the President does not possess constituent powers – as those powers may be exercised only by Congress, a Constitutional Convention, or the people through initiative and referendum – she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers. In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos’ act of directly submitting proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The majority upheld the President’s 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 National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee and Muñoz Palma vigorously dissented. The Court’s 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.

174 165 Phil. 303 (1976). 138 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Justice Teehankee’s dissent,175 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 President’s action along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee opined: Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise 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 President’s questioned decrees proposing and submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis.176 (Emphasis 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 require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty. Since, under the present Constitution, 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. These recommendations, however, may amount to nothing more than the President’s suggestions to the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine “people’s 175 Id. at 412. 176 Id. at 413. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 139 initiative.” The only initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:177 The Lambino Group claims that their initiative is the ‘people’s voice.’ However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ‘ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal- Arroyo for constitutional reforms.’ The Lambino Group thus admits that their ‘people’s’ initiative is an ‘unqualified support to the agenda’ of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of ‘people’s voice’ or ‘sovereign will’ in the present initiative. It will be observed that the President has authority, as stated in her oath of office,178 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 foregoing discussion focused on the President’s authority to propose constitutional amendments, since her authority to propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to Congress. 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.179 177 G.R. No. 174153, October 25, 2006, 505 SCRA 160, 264–265.

178 CONSTITUTION, Article VII, Section 5. 179 Article VI, Section 25(1) of the Constitution states as follows: “The Congress may not increase the appropriations recommended by 140 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

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. Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws “shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework.” This stipulation does not bear the marks of a suspensive condition – defined in civil law as a future and uncertain event – but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but when. That 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 Comprehensive Compact.” Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the MOA-AD – which changes would include constitutional amendments, as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among the “prior agreements” from which there could be no derogation. the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 141

What remains for discussion in the Comprehensive Compact would merely be the implementing details for these “consensus points” and, notably, the deadline for effecting the contemplated changes to the legal framework. Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President’s authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the “consensus points” found in the MOA-AD. Hence, it must be struck down as unconstitutional. A comparison between the “suspensive clause” of the MOA- AD with a similar provision appearing in the 1996 final peace agreement between the MNLF and the GRP is most instructive. As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase I covered a three-year transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the establishment of the new regional autonomous government through amendment or repeal of RA No. 6734, which was then the Organic Act of the ARMM. The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-AD virtually guarantees that the “necessary changes to the legal framework” will be put in place, the GRP-MNLF final peace agreement states thus: “Accordingly, these provisions [on Phase II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law.” Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a 142 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I binding agreement under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however. The MOA-AD, 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 Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the contrary conclusion. The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord case) of the Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict for around eight years at the time of signing. There were non- contracting signatories to the agreement, among which were the Government of the Togolese Republic, the Economic Community of West African States, and the UN. On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone Government, another agreement was entered into by the UN and that Government whereby the Special Court of Sierra Leone was established. The sole purpose of the Special Court, 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 November 30, 1996. Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the RUF with respect to anything done by them in pursuit of their objectives as members of that organization since the conflict began. 180 Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), March 13, 2004]. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 143

In the Lomé Accord case, the Defence argued that the Accord created an internationally binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign dignitaries and international organizations in the finalization of that agreement. The Special Court, however, rejected this argument, ruling that the Lomé Accord is not a treaty and that it can only create binding obligations and rights between the parties in municipal law, not in international law. Hence, the Special Court held, it is ineffective in depriving an international court like it of jurisdiction. 37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in addition to the parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or their representatives and representatives of international organizations, means the agreement of the parties is internationalized so as to create obligations in international law. x x x x 40. Almost 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 took 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. 41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lomé Agreement were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, “this peace agreement is implemented with integrity and in good faith by both parties.” The moral guarantors assumed no legal obligation. It is recalled that the UN by its 144 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

representative appended, presumably for avoidance of doubt, an understanding of the extent of the agreement to be implemented as not including certain international crimes. 42. An 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. The Lomé Agreement created neither rights nor obligations capable of being regulated by international law. An agreement such as the Lomé Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of peace that the international community acting through the Security Council may take note of. That, however, will not convert it to an international agreement which creates an obligation enforceable in international, as distinguished from municipal, law. A 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 Council may indicate a reversal of the factual situation of peace to be visited with possible legal consequences arising from the new situation of conflict created. Such consequences such as action by the Security Council pursuant to Chapter VII 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 peace agreement which settles an internal armed conflict cannot be ascribed the same status as one which settles an international armed conflict which, essentially, must be between two or more warring States. The Lomé Agreement cannot be characterised as an international instrument. x x x (Emphasis, italics and underscoring supplied) Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement would not have sufficed to vest in it a binding character under international law. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 145

In another vein, concern has been raised that the MOA-AD 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 Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France,181 also known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ). In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France’s 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 Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case.182 Those statements, the ICJ held, amounted to a legal undertaking addressed to the international community, which required no acceptance from other States for it to become effective. Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in issuing its public statements, viz: 43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or 181 1974 I.C.J. 253, 1974 WL 3 (I.C.J.).

182 M. Janis and J. Noyes, INTERNATIONAL LAW, CASES AND COMMENTARY, 3rd ed. 280 (2006). 146 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made. 44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound – the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. x x x x 51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers *270 that the President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words were addressed. x x x (Emphasis and underscoring supplied) As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present: the statements were clearly addressed to the PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 147 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. The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute. The 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 Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso. Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali’s President was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject thereof, to wit: 40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government’s unilateral declarations had ‘conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests’ (I.C.J. Reports 1974, p. 269, paragraph 51; p. 474, paragraph 53). In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here, there was

183 1986 I.C.J. 554, 1986 WL 15621 (I.C.J.), December 22, 1986. 148 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali’s head of State on April 11, 1975 as a unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied) Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The 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 organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law. Since the commitments in the MOA-AD 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 MOA-AD are closer to that of Burkina Faso wherein, as already discussed, the Mali President’s statement was not held to be a binding unilateral declaration by the ICJ. As 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. Here, that formal agreement would have come about by the inclusion in the MOA- AD of a clear commitment to be legally bound to the PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 149 international community, not just the MILF, and by an equally clear indication that the signatures of the participating states- representatives would constitute an acceptance of that commitment. Entering 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 Government from entering into a formal agreement with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-AD may not be considered a unilateral declaration under international law. The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents’ almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The 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 brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is known as Jus Cogens.184 Respondents, however, may not preempt it in that decision.

184 Planas v. COMELEC, 151 Phil. 217, 249 (1973). 150 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, 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. Contrary to the assertion of respondents that the non- signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the “moot and academic” principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review. The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original. The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents’ action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes. The people’s right to information on matters of public concern under Section 7, Article III of the Constitution is in splendid symmetry with the state policy of full public disclosure PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 151 of all its transactions involving public interest under Section 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 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. An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights. At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people’s right to be consulted on relevant matters relating to the peace agenda. One, 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. Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast 152 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I 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. Three, 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. The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny. 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. While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) 153 amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents’ act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. WHEREFORE, respondents’ motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED. The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION. SO ORDERED. Puno (C.J.), Please see Separate Concurring Opinion. Quisumbing, J., concur. Ynares-Santiago, J., See Separate Concurring Opinion and concur with Separate Opinion of C.J. Puno. Carpio, J., See Concurring Opinion. Austria-Martinez, J., I also concur with CJ’s Separate Opinion. Corona, J. I share the Dissent of Mr. Justice Tinga. 154 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Azcuna, J., I concur in a Separate Opinion. Tinga, J., I dissent from the result. See Separate Opinion. Chico-Nazario, J., Please see Dissenting Opinion. Velasco, Jr. J., Please see Dissenting Opinion. Nachura, J., Please see Dissenting Opinion. Reyes, J., I certify that J. Reyes filed a Separate Opinion concurring with the majority. (Puno, C.J.) Leonardo-De Castro, J., Please see Concurring and Dissenting Opinion. Brion, J., Please see Dissenting Opinion. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 155

SEPARATE CONCURRING OPINION

Puno, C.J.: It is the duty of the government to seek a just, comprehensive and enduring peace with any rebel group but the search for peace must always be in accord with the Constitution. Any search for peace that undercuts the Constitution must be struck down. Peace in breach of the Constitution is worse than worthless.

I. HISTORICAL ROOTS

A historical perspective of our Muslim problem is helpful. From time immemorial, an enduring peace with our Muslim brothers and sisters in Mindanao has eluded our grasp. Our Muslim problem exploded in March of 1968 when Muslim trainees were massacred by army officers at Corregidor. About 180 Muslim trainees had been recruited in the previous year as a part of a covert force named Jabidah,1 allegedly formed to wrest away Sabah from Malaysia. The trainees were massacred when they reportedly protested their unbearable training and demanded the return to their home.2 The Jabidah Massacre fomented the formation of Muslim groups clamoring for a separate Islamic state. One of these groups was the Muslim Independence Movement (MIM), founded by the then Governor of Cotabato, Datu Udtog Matalam.3 Another was the Nurul Islam, led by Hashim Salamat. 1 The formation of the commando unit was supposedly for a destabilization plan by the Marcos government aimed at Sabah. The young Muslim recruits were to be mobilized for operations against Sabah and subsequently claim it from Malaysia. 2 T.J.S. George, Revolt in Mindanao: The Rise of Islam in Philippine Politics (1980) and Cesar Majul, The Contemporary Muslim Movement in the Philippines (1985), cited in Thomas M. McKenna, Muslim Rulers and Rebels, Everyday Politics and Armed Separatism in Southern Philippines, p. 141 (1998). 3 Thomas M. McKenna, Muslim Rulers and Rebels, Everyday Politics and Armed Separatism in Southern Philippines, p. 144 (1998). 156 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

On September 21, 1972 Martial Law was declared by President Ferdinand E. Marcos. Among the reasons cited to justify martial law were the armed conflict between Muslims and Christians and the Muslim secessionist movement in the Southern Philippines.4 The imposition of martial law drove some of the Muslim secessionist movements to the underground. One of them was the Moro National Liberation Front (MNLF) headed by Nur Misuari. In 1974, the MNLF shot to prominence, when the Organization of Islamic Conference (OIC) officially gave it recognition. During the 5th ICFM, they strongly urged “the Philippines Government to find a political and peaceful solution through negotiation with Muslim leaders, particularly with representatives of the MNLF in order to arrive at a just solution to the plight of the Filipino Muslims within the framework of national sovereignty and territorial integrity of the Philippines”; and recognized “the problem as an internal problem with the Philippine Government to ensure the safety of the Filipino Muslims and the preservation of their liberties in accordance with the Universal Declaration of Human Rights.”5 In December 1976, the Philippine government and the MNLF under the auspices of the OIC started their peace negotiation in Tripoli, Libya. It bore its first fruit when on January 20, 1977, the parties signed the Tripoli Agreement in Zamboanga City in the presence of the OIC Representative. President Marcos immediately implemented the Tripoli Agreement. He issued Presidential Proclamation No. 1628, “Declaring Autonomy in Southern Philippines.” A plebiscite was conducted in the provinces covered under the Tripoli Agreement to determine the will of the people thereat. Further, the legislature enacted Batasang Pambansa Blg. 20, “Providing for the Organization of Sangguniang Pampook (Regional

4 Ferdinand Marcos, “Proclamation of Martial Law,” Philippine Sunday Express 1(141):5–8, cited in Thomas McKenna, supra, at 156. 5 Quoted in “Implementation of the Tripoli Agreement” jointly published by the Department of Foreign Affairs and the Ministry of Muslim Affairs, Manila, November 27, 1984, p. 36, cited in Abraham Iribani, Give Peace a Chance, The Story of the GRP-MNLF peace Talks, p. 15 (2006), at p. 36. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 157

Legislative Assembly) in Each of Regions IX and XII.” President Marcos then ordered the creation of Autonomous Region IX and XII. In the meanwhile, the MNLF continued enhancing its international status. It was accorded the status of an observer in Tripoli, Libya during the 8th ICFM. In the 15th ICFM at Sana’a, Yemen, in 1984, the MNLF’s status was further elevated from a mere ‘legitimate representative’ to ‘sole legitimate representative’ of the Bangsamoro people.6 In April 1977, the peace talks between the Government of the Republic of the Philippines (GRP) and MNLF Talks collapsed. Schism split the MNLF leadership. The irreconcilable differences between Nur Misuari and Hashim Salamat led to the formation of the Moro Islamic Liberation Front (MILF), headed by Hashim Salamat. Thus, the Maguindanao-led MILF, parted ways with the Tausug-led MNLF. In 1986, the People Power Revolution catapulted Corazon C. Aquino to the Presidency. Forthwith, she ordered the peace talks with the MNLF to resume. The 1987 Constitution was ratified by the people. It provided for the creation of the Autonomous Region of Muslim Mindanao through an act of Congress. But again the talks with the MNLF floundered in May 1987.7 Be that as it may, it was during President Aquino’s governance that a culture of peace negotiations with the rebellious MNLF and MILF was cultivated.8 Thus, the Autonomous Region of Muslim Mindanao (ARMM) was created through Republic Act No. 6734. The law took effect on August 1, 1989.

6 From MNLF files, Nur Misuari, Chairperson of the MNLF, Address delivered before the Plenary Session of the 19th ICFM, held in Cairo, Egypt, July 31 to August 5, 1990, “The Tragedy of the Peace Process and What the 19th ICFM Can Do to Help,” cited in Abraham Iribani, supra note 5, at p. 39. 7 Abraham Iribani, supra note 5, at p. 43. 8 Marites Danguilan Vitug and Glenda M. Gloria, Under the Crescent Moon: Rebellion in Mindanao, p. 141 (2000). 158 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Then came the presidency of President Fidel V. Ramos. He issued on September 15, 1993, Executive Order No. 125 (E.O. 125) which provided for a comprehensive, integrated and holistic peace process with the Muslim rebels. E.O. 125 created the Office of the Presidential Adviser on the Peace Process to give momentum to the peace talks with the MNLF. In 1996, as the GRP-MNLF peace negotiations were successfully winding down, the government prepared to deal with the MILF problem. Formal peace talks started on January of 1997, towards the end of the Ramos administration. The Buldon Ceasefire Agreement was signed in July 19979 but time ran out for the negotiations to be completed. President Joseph Estrada continued the peace talks with the MILF. The talks, however, were limited to cessation of hostilities and did not gain any headway. President Estrada gave both sides until December 1999 to finish the peace process.10 They did not meet the deadline. The year 2000 saw the escalation of acts of violence and the threats to the lives and security of civilians in Southern Mindanao. President Estrada then declared an “all-out war” against the MILF.11 He bowed out of office with the “war” unfinished. Thereafter, President Gloria Macapagal Arroyo assumed office. Peace negotiations with the MILF were immediately set for resumption. Executive Order No. 3, was issued “Defining Policy and Administrative Structure: For Government’s Comprehensive Peace Efforts.” On March 24, 2001, a General Framework for the Resumption of Peace Talks between the GRP and the MILF was signed. Republic Act No. 905412 was also 9 Id. at 146. 10 Id. at 161. 11 Memorandum of the Respondent Government of the Republic of the Philippines Peace Panel on the Ancestral Domain, September 26, 2008, p. 10. 12 Republic Act No. 9054, An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, amending for the purpose Republic Act No. 6734, entitled ‘An Act Providing for the Autonomous Region in Muslim Mindanao,’ as amended (2001). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 159 enacted on March 31, 2001 and took effect on August 14, 2001 to strengthen and expand the Autonomous Region of Muslim Mindanao. Through the Organic Act of 2001, six municipalities in Lanao del Norte voted for inclusion in the ARMM. On June 22, 2001, the ancestral domain aspect of the GRP- MILF Tripoli Agreement was signed in Libya. Several rounds of exploratory talks with the MILF followed. Unfortunately, on April 2, 2003, Davao was twice bombed. Again, the peace talks were cancelled and fighting with the MILF resumed. On July 19, 2003 the GRP and the MILF agreed on “mutual cessation of hostilities” and the parties returned to the bargaining table. The parties discussed the problem of ancestral domain, divided into four strands: concept, territory, resources, and governance. On February 7, 2006, the 10th round of Exploratory Talks between the GRP and the MILF ended. The parties issued a joint statement of the consensus points of the Ancestral Domain aspect of GRP-MILF Tripoli Agreement on Peace of June 22, 2001. The Joint Statement provides that: Among the consensus points reached were: • Joint determination of the scope of the Bangsamoro homeland based on the technical maps and data submitted by both sides; • Measures to address the legitimate grievances of the Bangsamoro people arising from the unjust dispossession and/or marginalization; • Bangsamoro people’s right to utilize and develop their ancestral domain and ancestral lands; • Economic cooperation arrangements for the benefit of the entire Bangsamoro people. On July 27, 2008, a Joint Statement on the Memorandum of Agreement on Ancestral Domain (MOA-AD) was signed by Chairperson Rodolfo C. Garcia on behalf of the GRP Peace Panel, and Mohagher Iqbal on behalf of the MILF Panel. In the Joint Statement, it was declared that the final draft of the MOA-AD has already been initialed. It was announced that “both sides reached a consensus to initial the final draft pending its official 160 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I signing by the Chairmen of the two peace panels in early August 2008, in Putrajaya, Malaysia.”13 The Joint Statement triggered the filing of the petitions at bar. These Petitions, sought among others, to restrain the signing of the MOA-AD. On August 4, 2008, a day before the intended signing of the initialed MOA-AD, this Court issued a Temporary Restraining Order stopping the signing of the MOA-AD. Several petitions-in-intervention were also filed praying for the same relief. On August 8, 2008 and September 1, 2008, the respondents through the Solicitor General, submitted official copies of the initialed MOA-AD to the Court and furnished the petitioners and petitioners-in-intervention with copies of the same. All the petitions were heard by the Court in three separate days of oral arguments. In the course of the arguments, the Solicitor General informed the Court that the MOA-AD will not be signed “in its present form or any other form.”14 Thereafter, the government Peace Panel was dismantled by the President.

II. PETITIONS SHOULD BE DECIDED ON THE MERITS

The first threshold issue is whether this Court should exercise its power of judicial review and decide the petitions at bar on the merits. I respectfully submit that the Court should not avoid its constitutional duty to decide the petitions at bar on their merit in view of their transcendental importance. The subject of review in the petitions at bar is the conduct of the peace process with the MILF which culminated in the MOA-AD. The constitutionality of the conduct of the entire peace process and not just the MOA-AD should go under the scalpel of judicial scrutiny. The review should not be limited to the initialed MOA- AD for it is merely the product of a constitutionally flawed process of negotiations with the MILF.

13 GRP-MILF Joint Statement on the Memorandum of Agreement on Ancestral Domain, July 27, 2008. 14 Memorandum of the Solicitor General for the Respondents, September 26, 2008, p. 7. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 161

Let us revisit the steps that led to the contested and controversial MOA-AD. Peace negotiations with the MILF commenced with the execution of ceasefire agreements. The watershed event, however, occurred in 2001, with the issuance of Executive Order No. 315 entitled “Defining Policy and Administrative Structure for Government’s Comprehensive Peace Efforts.” Government Peace Negotiating Panels were immediately constituted to negotiate peace with rebel groups, which included the MILF. Significantly, Executive Order No. 3 provides that in the pursuit of social, economic and political reforms, administrative action, new legislation or even constitutional amendments may be required.16 Section 4 of Executive Order No. 3 states, viz:

15 February 28, 2001.

16 EXECUTIVE ORDER No. 3, (2001), Section 4(a). 162 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Executive Order No. 3, was later amended by E.O. No. 555,17 and was followed by the Tripoli Peace Agreement of 2001. The Tripoli Peace Agreement of 2001 became the basis for several rounds of exploratory talks between the GRP Peace Panel and the MILF. These exploratory talks resulted in the signing of the Joint Statements of the GRP and MILF peace panels to affirm commitments that implement the Tripoli Agreement of 2001, including the ancestral domain aspect. The issuance of the Joint Statements culminated in the initialing of the MOA-AD.18 It is crystal clear that the initialing of the MOA-AD is but the evidence of the government peace negotiating panel’s assent to the terms contained therein. If the MOA-AD is constitutionally infirm, it is because the conduct of the peace process itself is flawed. It is the constitutional duty of the Court to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the government peace negotiating panel in the conduct of the peace negotiations with the MILF. The Court should not restrict its review on the validity of the MOA-AD which is but the end product of the flawed conduct of the peace negotiation with the MILF.

Requirements of Ripeness and Mootness are not bars to review

In contending that this Court should refrain from resolving the merits of the petitions at bar, two principal defenses were deployed by the Solicitor General: 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. To contend that an issue is not ripe for adjudication is to invoke

17 Amending Sections 5(c) and 11 of Executive Order No. 3, s-2001, Defining the Policy and Administrative Structure for Government’s Comprehensive Peace Efforts, August 3, 2006. 18 Individually, these documents have been identified as terms of referents for the MOA. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 163 prematurity;19 that the issue has not reached a state where judicial intervention is necessary, hence, there is in reality no actual controversy. On the other hand, to urge that an issue has become moot concedes that judicial intervention was once proper but subsequent developments make further judicial action unnecessary. Together, mootness and ripeness act as a two-pronged pincer, squeezing the resolution of controversies within a narrow timeframe.20 First, the issues at bar are ripe for resolution. In Ohio Forestry Ass’n Inc. v. Sierra Club,21 the following factors were identified as indicative of the ripeness of a controversy: 1. Whether delayed review would cause hardship to the plaintiffs; 2. Whether judicial intervention would inappropriately interfere with further administrative action; 3. Whether the Court would benefit from further factual development of the issues presented; Underlying the use of the foregoing factors is first, the setting of a threshold for review and second, judicial application of the threshold to the facts extant in a controversy. I respectfully submit that where a controversy concerns fundamental constitutional questions, the threshold must be adjusted to allow judicial scrutiny, in order that the issues may be resolved at the earliest stage before anything irreversible is undertaken under cover of an unconstitutional act. Schwartz cites one vital consideration in determining ripeness, viz: In dealing with ripeness, one must distinguish between statutes and other acts that are self-executing and those that are not. If a statute is self executing, it is ripe for challenge as soon as it is enacted. For such a statute to be subject to judicial review,

19 Schwartz, Bernard. Constitutional Law at p. 25 (1972). 20 Bowen v. Roy, 476 U.S. 693, 722 (1976). 21 523 U.S. 726 (1998). 164 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

it is not necessary that it be applied by an administrator, a prosecutor, or some other enforcement officer in a concrete case.22 Although Schwartz employs the term “statute,” he qualifies that the principle enunciated applies to other governmental acts as well.23 Prescinding from these parameters, it is evident that the Court is confronted with a MOA-AD that is heavily laden with self-executing components. Far from the representation of the Solicitor General, the MOA-AD is not a mere collection of consensus points,24 still bereft of any legal consequence. The commitments made by the government panel under the MOA- AD can be divided into (1) those which are self-executory or are immediately effective by the terms of the MOA-AD alone, (2) those with a period or which are to be effective within a stipulated time, and (3) those that are conditional or whose effectivity depends on the outcome of a plebiscite. Let us cast an eye on the self executory provisions of the MOA-AD which will demolish the argument of the respondents that the issues in the petitions at bar are not ripe for adjudication. The MOA-AD provides that “the Parties affirm that the core of the BJE shall constitute the present geographic area of the ARMM, including the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte that voted for inclusion in the ARMM during the 2001 plebiscite.” The MOA-AD then proceeds to enumerate the powers that the BJE possesses within its area. The BJE is granted powers of governance which it can exercise without need of amendments to be made to the Constitution or existing law or without imposing any condition whatsoever. 22 Supra note 18, at 25. 23 Id. at 78. 24 Memorandum for the Respondents Government of the Republic of the Philippines Peace Panel on the Ancestral Domain, September 26, 2008, p. 16. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 165

The MOA-AD also gives the BJE the unconditional right to participate in international meetings and events, e.g., ASEAN meetings and other specialized agencies of the United Nations.25 It grants BJE the right to participate in Philippine official missions and delegations that are engaged in the negotiation of border agreements or protocols for environmental protection, equitable sharing of incomes and revenues, in addition to those of fishing rights.26 Again, these rights are given to the BJE without imposing prior conditions such as amendments to the Constitution, existing law or the enactment of new legislation. Next, let us go to provisions of the MOA-AD with a period which will further demonstrate the lack of merit of respondents’ posture that the petitions at bar are not ripe for adjudication. The MOA-AD provides that “without derogating from the requirements of prior agreements,27 the Government stipulates 25 Id., Resources, No. 4(b), p. 8. 26 Memorandum of Agreement on Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001, Territory, No. 2(f), p. 4. 27 The Agreement for General Cessation of Hostilities dated July 18, 1997 Between the GRP and the MILF, and its Implementing Administrative and Operational Guidelines; The General Framework of Agreement of Intent Between the GRP and the MILF dated August 27, 1998; The Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF dated March 24, 2001; The Tripoli Agreement on Peace Between the GRP and the MILF dated June 22, 2001; The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996; Republic Act No. 6734, as amended by RA No. 9054, otherwise known as “An Act to Strengthen and Expand the Autonomous Region in Muslim Mindanao (ARMM)”; ILO Convention No. 169, in correlation to the UN Declaration on the Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter; the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), and internationally recognized human rights instruments. 166 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I to conduct and deliver, within 12 months following the signing of the Memorandum of Agreement on Ancestral Domain, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A x x x the Parties shall endeavor to complete negotiations and resolve all outstanding issues on the Comprehensive Compact within 15 months from signing of the MOA-AD.”28 Once 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 MOA-AD. The provision starkly states that within twelve months, the government will conduct and deliver a plebiscite covering areas under Category A of the MOA-AD. We now come to respondents’ argument on mootness. In determining whether a case has been rendered moot, courts look at the development of events to ascertain whether the petitioner making the constitutional challenge is confronted with a continuing harm or a substantial potential of harm. Mootness is sometimes viewed as “the doctrine of standing set in a time frame: The requisite personal interest must exist at the commencement of the litigation and must continue throughout its existence.”29 Stated otherwise, an actual controversy must be extant at all stages of judicial review, not merely at the time the complaint is filed.30 Respondents insist that the petitions at bar are moot for three reasons: (1) the petitioners North Cotabato and Zamboanga have already been furnished copies of the MOA- AD; (2) the Executive Secretary has issued a Memorandum that the government will not sign the MOA-AD and, (3) the GRP Peace Panel has been dissolved by the President. These grounds are barren grounds. For one, the press statements of the Presidential Adviser on the Peace Process,

28 Memorandum of Agreement on Ancestral Domain, Territory, 2(d), p. 3. 29 United States Parole Commission v. Geraghty, 445 U.S. 388, 397 (1980) quoting Henry Monaghan, “Constitutional Adjudication: The Who and When,” 82 Yale L.J. 1363, 1384 (1973). 30 Preiser v. Newkirk, 422 U.S. 395, 401–02 (1975). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 167

Gen. Hermogenes Esperon, Jr., are clear that the MOA-AD will still be used as a major reference in future negotiations.31 For another, the MILF considers the MOA-AD a “done deal,”32 hence, ready for implementation. On the other hand, the peace panel may have been temporarily dismantled but the structures set up by the Executive and their guidelines which gave rise to the present controversy remain intact. With all these realities, the petitions at bar fall within that exceptional class of cases which ought to be decided despite their mootness because the complained unconstitutional acts are “capable of repetition yet evading review.”33 This well-accepted exception to the non-reviewability of moot cases was first enunciated in the case of Southern Pacific Terminal Co. v. ICC.34 The United States Supreme Court 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 expired. In the petitions at bar, one need not butt heads with the Solicitor General to demonstrate the numerous constitutional infirmities of the MOA-AD. There is no need to iterate and reiterate them. Suffice to stress that it is because of these evident breaches, that the MOA-AD requires the present Constitution to undergo radical revisions. Yet, the unblushing threat is made that the MOA-AD which shattered to smithereens all respect to the Constitution will continue to be a reference point in future peace negotiations with the MILF. In fine, the MOA-AD 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 orthodox thought that once a controversy as to the application of a constitutional provision is 31 Memorandum of Petitioners-Intervenors Franklin Drilon and Adel Tamano, September 18, 2008, p. 2. 32 Id. at 13. 33 David v. Macapagal-Arroyo, G.R. No. 171396, 489 SCRA 160, May 3, 2006. 34 219 U.S. 498 (1911). 168 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I raised before this Court, it becomes a legal issue which the Court is hide-bound to decide.35 Supervening events, whether contrived or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution has already been committed or the threat of being committed again is not a hypothetical fear.36 It is the function of judicial review to uphold the Constitution at all cost or we forfeit the faith of the people.

III. THE DEVIATION FROM THE MNLF MODEL OF PURSUING PEACE WITH REBELS IS INEXPLICABLE

The MNLF model in dealing with rebels which culminated in the Peace Agreement of 1996, was free from any infirmity because it respected the metes and bounds of the Constitution. While the MNLF model is ostensibly based on the Tripoli Agreement of 1976, its implementation was in perfect accord with Philippine laws. The implementation of the Tripoli Agreement of 1976 came in two phases: the first, under the legislative power of then President Marcos and the second, under the provisions of Article X of the 1987 Constitution and its implementing legislation, Republic Act No. 6734.37 Under President Marcos, autonomy in the affected provinces was recognized through Presidential Proclamation No. 1628. It declared autonomy in 13 provinces and constituted a provisional government for the affected areas. The proclamation was followed by a plebiscite and the final framework for the autonomous region was embodied in Presidential Decree No. 1618. The establishment of the autonomous region under PD No. 1628 was constitutionalized by the commissioners in the 1987 Constitution as shown by the following exchange of views:

35 Tanada v. Angara, 338 Phil. 546, 574 (1997). 36 Chavez v. Public Estates Authority, 433 Phil. 522 (2002). 37 An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao, August 1, 1989. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 169

MR. ALONTO: Madam President, I have stated from the start of our consideration of this Article on Local Governments that the autonomous region exists now in this country. There is a de facto existence of an autonomous government in what we call now Regions IX and XII. Region IX is composed of the provinces of Tawi-Tawi, Sulu, Basilan, Zamboanga City, Zamboanga del Sur and Zamboanga del Norte, including all the component cities in the provinces. Region XII is composed of the Provinces of Lanao del Norte, Lanao del Sur, Maguindanao, Sultan Kudarat and North Cotabato. This autonomous region has its central governmental headquarters in Zamboanga City for Region IX and in Cotabato City for Region XII. In fact, it is stated by Commissioner Ople that it has an executive commission and a legislative assembly. MR. DE CASTRO: Madam President. MR. ALONTO: These two regions have been organized by virtue of PD No. 1618 of President Marcos, as amended by PD No. 1843. MR. DE CASTRO: Madam President. MR. ALONTO: If the Gentleman will bear with me, I will explain to him. That is why there is a de facto autonomous government existing in Mindanao MR. DE CASTRO: Madam President. THE PRESIDENT: May we please allow Commissioner Alonto to finish his remarks before any interruption? MR. DE CASTRO: Yes Madam President. MR. ALONTO: Madam President, this autonomous region is recognized by the present regime for the very reason that the present regime is now in the process of a negotiation with the Moro National 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 National Liberation Front. THE PRESIDENT: Commissioner Uka is recognized. MR. UKA: Madam President, not only that. President Corazon C. Aquino has appointed Mr. Albert Tugum as the Chairman of 170 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Region IX and Mr. Datu Zakaria Candau as chairman of Region XII. They are doing their work well right now. So there are two recognized autonomous regions. They have also a complete regional assembly as the legislative body. So, it is only a matter of putting this in the Constitution. THE PRESIDENT: So, what is before the body is the proposed amendment on Line 11 of Section 1. Commissioner de Castro is recognized. MR. DE CASTRO: Madam President, if there is now an autonomous region in Mindanao and if, according to the Honorable Ople, 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 act? My amendment is simply to clarify the term “Muslim Mindanao.” I really did not expect that this will go this far — that it is being placed in the Constitution, that it is a fait accompli and that all we have to do here is say “amen” to the whole thing and if we do not say “amen,” they will still continue to be autonomous regions. I insist on my amendment, Madam President. MR. OPLE: May I provide more information to Commissioner de Castro on this matter. First of all, we have to correct the misimpression that the autonomous regions, such as they now exist in Mindanao, do not enjoy the recognition of the central government. Secondly, may I point out that the autonomy existing now in Regions IX and XII is a very imperfect kind 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 taken in order to guarantee by the Constitution the right to autonomy of the people embraced in these regions and not merely on the sufferance of any existing 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, what we seek is constitutional permanence for this right. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 171

May I also point out, Madam President, that the Tripoli Agreement was negotiated under the aegis of foreign powers. No matter how friendly and sympathetic they are to our country, this is under the aegis of the 42-nation Islamic Conference. Should our brothers look across the seas to a conclave of foreign governments so that their rights may be recognized in the Constitution? Do they have to depend upon foreign sympathy so that their right can be recognized in final, constitutional and durable form. THE PRESIDENT: Commissioner Ople, the consensus here is to grant autonomy to the Muslim areas of Mindanao? MR. OPLE: Yes. (Emphasis supplied)38 Clearly, the mandate for the creation of the ARMM is derived principally from the 1987 Constitution. Thereafter, ARRM was given life by Republic Act No. 6734,39 the Organic Act of the ARMM. Our executive officials were guided by and did not stray away from these legal mandates at the negotiation and execution of the Peace Agreement with the MNLF in 1996. Without ifs and buts, its Whereas Clauses affirmed our sovereignty and territorial integrity and completely respected our Constitution.40 In stark contrast, the peace process with the MILF draws its mandate principally from Executive Order No. 3. This executive order provided the basis for the execution of the Tripoli Agreement of 2001 and thereafter, the MOA-AD. During the whole process, the government peace negotiators conducted themselves free from the strictures of the Constitution. They played fast and loose with the do’s and dont’s of the Constitution. They acted as if the grant of executive power to the President allows them as agents to make agreements with the MILF in violation of the Constitution. They acted as if these violations can anyway be cured by committing that the sovereign

38 III CONSTITUTIONAL RECORD 495–496. 39 Republic Act No. 6734 was later amended by Republic Act No. 9504. The latter law took into account the terms of the Tripoli Agreement. 40 11th Whereas Clause. 172 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

people will change the Constitution to conform with the MOA- AD. They forgot that the Constitution grants power but also sets some impotence on power.

IV. THE EXERCISE OF EXECUTIVE POWER IS SUBJECT TO THE CONSTITUTION

Clearly, the respondents grossly misunderstood and patently misapplied the executive powers of the President. The MILF problem is a problem of rebellion penalized under the Revised Penal Code.41 The MILF is but a rebel group. It has not acquired any belligerency status. The rebellion of the MILF is recognized expressly by E.O. No. 342 as well as by E.O. No. 555.43 The President’s powers in dealing with rebellion are spelled out in Article VII, Section 18 of the Constitution, viz: The President shall be the Commander-in-Chief 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 requires it, he may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within 48 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 Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

41 Article 134, Revised Penal Code. 42 Section 4(c) provides for a “peaceful negotiated settlement” with the different rebel groups. 43 Creating a government peace panel to deal with the MILF. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 173

The Congress, if not in session, shall, within 24 hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, 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 extension thereof, and must promulgate its decision thereon within 30 days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize 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. The 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. During 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. These are the well crafted commander-in-chief powers of the President. They enumerate with exactitude the powers which the President should use in dealing with rebellion. They are graduated in degrees. The strongest of these powers is the power to declare martial law and worthy to note, its exercise is subject to restraints. But more important, all these commander- in-chief powers can only be used to quell the rebellion. They cannot be utilized to dismember the State or to create a state within our State and hand it over to the MILF rebels. In dealing with the MILF rebellion, the President may, however, opt not to use force but negotiate peace with the MILF. Undoubtedly, the President as Chief Executive can negotiate peace with rebels, like the MILF. Article VII, section 1 of the Constitution vests in the President the entire panoply of executive power, to reach peace with rebels. But undoubtedly too, the exercise of executive power to secure peace with rebels is limited by the Constitution. 174 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

All these is due to the preeminent principle that our government is fundamentally one of limited and enumerated powers. As well stated in Angara v. Electoral Commission,44 viz: But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution 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 Constitution that can run riot. There is no power in the Constitution that is unbounded. There is no power in the Constitution that can be exercised if it will destroy the Constitution. For all powers in the Constitution are designed to preserve the Constitution. In other words, the President as Chief Executive can negotiate peace with the MILF but it is peace that will insure that our laws are faithfully executed. The President can seek peace with the MILF but without crossing the parameters of powers marked in the Constitution to separate the other branches of government to preserve our democracy. For even in times of war, our system of checks and balances cannot be infringed.45 More so in times where the only danger that faces the State is the lesser danger of rebellion. Needless to stress, the power of the President to negotiate peace with the MILF is not plenary. While a considerable degree of flexibility and breadth is accorded to the peace negotiating panel, the latitude has its limits – the Constitution. The Constitution was ordained by the sovereign people and its

44 G.R. No. 45081, July 15, 1936. 45 Ex Parte Milligan 71 U.S. 2 (1866). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I CJ PUNO, CONCURRING OPINION 175

postulates may not be employed as bargaining chips without their prior consent.

V. T HE CONSTITUTION AS COMPACT OF THE PEOPLE

The question may be asked: In the process of negotiating peace with the MILF, why cannot the Executive commit to do acts which are prohibited by the Constitution and seek their ratification later by its amendment or revision? Many philosophical perspectives have been advanced in reply to this question. Yet, no theory has been as influential, nor has been as authoritative, as the social contract theory,46 articulated by John Locke, viz: For when any number of men have, by the consent of 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 majority: 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 way; it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority: 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 should; and so every one is bound by that consent to be concluded by the majority. And 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.47 The French philosopher, Jean Jacques Rosseau stressed the non-derogability of this social contract, viz:

46 Curtis, Michael M., The Great Political Theories at p. 360. This is with reference in particular to John Locke. 47 Locke, John, Second Treatise on Civil Government. Chapter VII, Section 96. Accessible at (Last accessed October 8, 2008). 176 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

But the body politic or sovereign, deriving its existence only from the sanctity of the contract, can never bind itself, even to others, in anything that derogates from the original act, such as alienation of some portion of itself, or submission to another sovereign. To violate the act by which it exists would be to annihilate itself; and what is nothing produces nothing.48 Dean Vicente Sinco of the U.P. College of Law articulated these precepts in his seminal work, Philippine Political Law, viz: As 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 organization of the essential departments of government, determines and limits their powers, and prescribes guarantees to the basic rights of the individual.49 x x x x Some authorities have also considered the constitution as a compact, an “agreement of the people, in their individual capacities, reduced to writing, establishing and fixing certain principles for the government of themselves.” This notion expresses the old theory of the social contract obligatory on all parties and revocable by no one individual or group less than the majority of the people; otherwise it will not have the attribute of law.50 (Emphasis supplied) In sum, there is no power nor is there any right to violate the Constitution on the part of any official of government. No one can claim he has a blank check to violate the Constitution in advance and the privilege to cure the violation later through amendment of its provisions. Respondents’ thesis of violate now, validate later makes a burlesque of the Constitution. I vote to grant the petitions. 48 Rosseau, Jean Jacques, The Social Contract Henry J. Tozer Translation, Ch. VI at pp. 20–21. 49 Sinco, Vicente G., Philippine Political Law, at p. 66 10th ed. (1954). 50 Id. at 66–67. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J YNARES-SANTIAGO, CONCURRING OPINION 177

SEPARATE CONCURRING OPINION

Ynares-Santiago, J.:

I join the majority opinion and concur in the views expressed in the ponencia. More particularly, I register my agreement in prohibiting respondents and their agents from signing and executing the Memorandum of Agreement on Ancestral Domain (MOA-AD), or any similar instruments. The said MOA-AD contains provisions which are repugnant to the Constitution and which will result in the virtual surrender of part of the Philippines’ territorial sovereignty, which our people has spent decades fighting for and which scores of men in uniform have valiantly defended. While the ponencia exhaustively discusses the grounds upon which the Court must invalidate and strike down the many questionable provisions of the MOA-AD, I wish to add some important points which, I hope, will serve to further highlight and underscore the serious constitutional flaws in the MOA- AD. Only after certain quarters took notice and raised a clamor, and only after this Court has issued a temporary restraining order enjoining the signing of the MOA-AD, did respondents, through the Office of the Solicitor General and the Executive Secretary, openly declare that the MOA-AD or any similar instrument will not be signed by the GRP. On this basis, respondents assert that the petitions have become moot and academic. This, to my mind, was a mere afterthought. For were it not for the timely exposure of the MOA-AD in the public light, the signing thereof would have gone ahead as planned. Furthermore, respondents’ protestations that the petitions have become moot and academic in view of the disclosure and non-signing of the MOA-AD is unavailing, as it is well-recognized that mootness, as a ground for dismissal of a case, is subject to certain exceptions. In David v. Pres. Arroyo,1 we held that the Court will decide cases, otherwise moot and academic, if: (1) there is a grave violation of the Constitution; (2) the situation is 1 G.R. No. 171396, May 3, 2006, 489 SCRA 160, 214–215. 178 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I exceptional in character and paramount public interest is involved; (3) the constitutional issues raised requires formulation of controlling principles to guide the bench, the bar and the public; and (4) the case is capable of repetition yet evading review. To 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. As shown by recent events, the MOA-AD has spawned violent conflicts in Mindanao and has polarized our nation over its real import and effects. The 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. The petitions also allege that the GRP panel committed grave violations of the Constitution when it negotiated and agreed to terms that directly contravene the fundamental law. The basic issue which emerged from all the assertions of the parties is not only whether the MOA-AD should be disclosed or signed at all but, more significantly, whether the GRP panel exceeded its powers in negotiating an agreement that contains unconstitutional stipulations. Considering 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 GRP panel’s authority in order to establish guiding and controlling principles on its extent and limits. By doing so, a repetition of the unfortunate events which transpired in the wake of the MOA-AD can hopefully be avoided. There is also the possibility that an agreement with terms similar to the MOA-AD may again be drafted in the future. Indeed, respondents cannot prevent this Court from determining the extent of the GRP panel’s authority by the simple expedient of claiming that such an agreement will not be signed or that the peace panel will be dissolved. There will be no opportunity to finally the settle the question of whether a negotiating panel can freely stipulate on terms that transgress PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J YNARES-SANTIAGO, CONCURRING OPINION 179 our laws and our Constitution. It can thus be said that respondents’ act of negotiating a peace agreement similar to the MOA-AD is capable of repetition yet evading review.2 The ultimate issue in these cases is whether the GRP panel went beyond its powers when it negotiated terms that contravene the Constitution. It is claimed that the panel stipulated on matters that were outside of its authority and under the exclusive prerogative of Congress. In other words, the constitutional as well as legal limits of executive authority in the drafting of a peace agreement have been squarely put in issue. This involves a genuine constitutional question that the Court has the right and duty to resolve. Respondents insist that it is not necessary to discuss the constitutionality of each provision of the MOA-AD, because the latter is but a codification of consensus points which creates no rights and obligations between the parties. The MOA-AD allegedly has no legal effects, even if it is signed, because it is merely a preliminary agreement whose effectivity depends on subsequent legal processes such as the formulation of a Comprehensive Compact, the holding of a plebiscite, the amendment of laws by Congress as well as constitutional amendments. Consequently, it would be premature for the Court to pass upon the constitutional validity of the MOA-AD since it is neither self-executory nor is it the final peace agreement between the GRP and MILF. A reading of the MOA-AD shows that its pertinent provisions on the basic concepts, territory, resources and governance of the Bangsamoro Juridical Entity (BJE) have been made to depend for its effectivity on “changes to the legal framework.” Paragraph 7 on the provisions on Governance states: 7. The parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon 2 Alunan III v. Mirasol, 342 Phil. 467, 476–477 (1997). 180 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. The provisions of the MOA-AD which require “amendments to the existing legal framework” include practically all the substantive terms of the document. It is not difficult to foresee that the material provisions of the MOA-AD will require either an amendment to the Constitution or to existing laws to become legally effective. Some of the required constitutional or statutory amendments are the following: a) Article I, Section 13 of the Constitution has to be amended to segregate the BJE territory from the rest of the Republic of the Philippines, as the MOA-AD delineates the Bangsamoro homeland under its paragraph 14 on Territory; b) Section 1, Article X5 of the Constitution will have to include the BJE as among the five kinds of political subdivisions recognized under the fundamental law. The provision of an Autonomous Region for Muslim Mindanao (ARMM) 3 ARTICLE I, SECTION 1. The 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, 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. 4 1. The Bangsamoro 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. However, delimitations are contained in the agreed Schedules (Categories).

5 ART. X, SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J YNARES-SANTIAGO, CONCURRING OPINION 181

will also have to be removed as the same is incorporated in the BJE per paragraph 2.c6 of the MOA-AD provisions on Territory; c) The provision in Section 15, Article X7 of the Constitution which declares the creation of the ARMM “within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines” must also be changed since there is no provision in the MOA-AD that subjects the BJE to the authority, territory and sovereignty of the Republic of the Philippines; d) Section 16, Article X8 of the Constitution which gives the President power to supervise autonomous regions will have to be amended since the MOA-AD does not provide for such supervision over the BJE; e) Section 18, Article X9 of the Constitution which requires personal, family and property laws of autonomous and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordillera as hereinafter provided. 6 The provision states: c. The parties affirm that the core of the BJE shall constitute the present geographic area of the ARMM, including the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao Del Norte that voted for inclusion in the ARMM during the 2001 plebiscite.

7 ART. X, SEC. 15. There shall be created Autonomous Regions in Muslim Mindanao and in the Cordilleras 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 framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

8 ART. X, SEC. 16. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed.

9 ART. X, SEC. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the 182 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

regions to comply with the Constitution and laws will have to be changed as the MOA-AD grants the BJE the power to make its own laws; f) An overhaul of the various constitutional provisions relating to the Executive, Judicial and Legislative Departments as well as the independent constitutional commissions must be undertaken to accommodate paragraph 810 of the MOA-AD provision on Governance which grants the BJE the power to create its own civil institutions; g) Section 3, Article II of the Constitution which declares the Armed Forces of the Philippines as protector of the people and the State will have to be changed because the MOA- AD provides that the BJE shall have its own internal security force11 and the AFP will only defend the Bangsamoro homeland against external aggression;12 regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of executive department and legislative assembly. Both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the Constitution and national laws. x x x 10 Paragraph 8, Governance. The parties agree that the BJE shall be empowered to build, develop and maintain its own institutions, inclusive of civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society, the details of which shall be discussed in the negotiation of the Comprehensive Compact. 11 Id. 12 Paragraph 4, Resources. The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J YNARES-SANTIAGO, CONCURRING OPINION 183

h) Section 2, Article XII13 of the Constitution must be changed to allow the BJE to manage, explore, develop, and utilize the natural resources within the Bangsamoro territory, pursuant to paragraphs 2.f,14 g (1)15 and h16 on Territory Philippines; provided, further that it shall remain the duty and obligation of the Central Government to take charge of external defense. Without prejudice to the right of the Bangsamoro juridical entity to enter into agreement and environmental cooperation with any friendly country affecting its jurisdiction.

13 ART. XII, SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. x x x 14 Paragraph 2.f, Territory. Internal Waters: The BJE shall have jurisdiction over the management, conservation, development, protection, utilization and disposition of all natural resources, living and non-living, within its internal waters extending 15 kilometers from the coastline of the BJE area. 15 Paragraph 2.g(1), Territory. Territorial Waters: (1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to the Republic of the Philippines (RP) baselines southeast and southwest of Mainland Mindanao. Beyond the 15 kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and all natural resources x x x. 16 Paragraph 2.h, Territory. Sharing of Minerals on Territorial Waters: Consistent with paragraphs 5 and 6 of the provisions on Resources, all potential sources of energy, petroleum in situ, hydrocarbon, natural gas and other minerals, including deposits or fields found within territorial waters, shall be shared between the Central Government and the BJE in favor of the latter through production sharing agreement or economic cooperation agreement. 184 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

and paragraphs 117 and 218 on Resources of the MOA-AD; i) Section 21, Article VII19 of the Constitution has to be amended to exempt the BJE from the ratification requirements of treaties and international agreements since it is given the power to enter into its own economic and trade agreements with other countries;

17 Paragraph 1, Resources. The BJE is empowered with authority and responsibility for the land use, development, conservation and disposition of the natural resources within the homeland. Upon entrenchment of the BJE, the land tenure and use of such resources and wealth must reinforce their economic self-sufficiency. x x x 18 Paragraph 2, Resources. The Bangsamoro People through their appropriate juridical entity shall, among others, exercise power or authority over the natural resources within its territorial jurisdiction: 1. To explore, exploit, use or utilize and develop their ancestral domain and ancestral lands within their territorial jurisdiction, inclusive of their right of occupation, possession, conservation, and exploitation of all natural resources found therein; 2. x x x 3. To utilize, develop, and exploit its natural resources found in their ancestral domain or enter into joint development, utilization, and exploitation of natural resources, specifically on strategic minerals, designed as commons or shared resources, which is tied up to the final setting of appropriate institutions; To revoke of grant forest concessions, timber license, contracts or agreements in the utilization and exploitation 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 BJE; x x x

19 ART. VII, SEC. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all Members of the Senate. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J YNARES-SANTIAGO, CONCURRING OPINION 185

j) The Bangsamoro homeland will have to be exempted from the power of the President to exercise general supervision of all local governments under Section 4, Article X20 of the Constitution because the MOA-AD does not provide for any such stipulation; k) Since the BJE will have its own laws, it is not subject to limitations imposed by Congress on its taxing powers under Section 5, Article X21 of the Constitution; l) RA No. 6734 and RA No. 9054, or the ARMM Organic Acts, have to be amended to allow for the existing ARMM to be included within the Bangsamoro homeland to be governed by the BJE; m) The Bangsamoro people will have to be exempted from the application of RA No. 8371 or the Indigenous Peoples Rights Act (IPRA) insofar as the MOA-AD declares the Bangsamoro territory as ancestral domain and recognizes in the Bangsamoro people rights pertaining to indigenous peoples under the IPRA; n) Existing laws which regulate mining rights and the exploitation of natural resources will also have to exempt the BJE from its coverage, as the MOA-AD grants the BJE the power to utilize, develop and exploit natural resources within its territory as well as the authority to revoke or grant forest concessions, timber licenses and mining agreements; and o) The BJE will also have to be exempted from existing agrarian statutes as the BJE is empowered to enact its

20 ART. X, SEC. 4. The President of the Philippines shall exercise general supervision over local governments. x x x

21 ART. X, SEC. 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government. 186 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

own agrarian laws and program under paragraph 2.e22 on Resources. From the foregoing, it is clear that the substantive provisions of the MOA-AD directly contravene the fundamental law and existing statutes. Otherwise, it would not be necessary to effect either statutory or constitutional amendments to make it effective. Moreover, as correctly pointed out by petitioners, the GRP panel exceeded its authority when it categorically undertook to make these statutory and constitutional changes in order to fully implement the MOA-AD. Paragraph 7 of the MOA-AD on Governance states that provisions therein which require amendments to the existing legal framework shall come into force upon signing of the Comprehensive Compact and upon effecting the necessary changes to the legal framework. These “necessary changes” shall be undertaken “with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.” The language of the aforesaid paragraph 7 on Governance, in relation to paragraph 2(d) on Territory, indicates that the GRP panel committed itself to cause the necessary changes to the legal framework within a stipulated timeframe for the MOA- AD to become effective. Paragraph 2(d) on Territory reads: 2. Toward this end, the Parties enter into the following stipulations: x x x x d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within 12

22 Paragraph 2.e, Resources states that the BJE shall have the power: e. To enact agrarian laws and programs suitable to the special circumstances of the Bangsamoro people prevailing in their ancestral lands within the established territorial boundaries of the Bangsamoro homeland and ancestral territory within the competence of the BJE; x x x PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J YNARES-SANTIAGO, CONCURRING OPINION 187

months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the Annex). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within 15 months from the signing of the MOA-AD. Pursuant to the above, the GRP panel bound itself to “complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within 15 months from the signing of the MOA-AD.” On the other hand, it is explicitly provided in paragraph 7 on Governance that the Comprehensive Compact shall contain a stipulated timeframe within which to effect the necessary changes to the legal framework. In other words, the GRP panel undertook to change the legal framework within a contemplated period to be agreed upon within 15 months from the signing of the MOA-AD. It should also be noted that, in accordance with paragraph 2 (a)23 on Territory, the GRP panel committed itself “to the full and mutual implementation of this framework agreement on territory.” To fully realize the MOA-AD stipulations on territory, it would be necessary to effect both statutory and constitutional amendments as well as complete negotiations on the Comprehensive Compact. The plebiscite envisioned under paragraph 2 (c) on Territory, for instance, would require not only an amendment of the ARMM Organic Acts, but also a constitutional amendment that would allow for the very creation of the BJE. Thus, the full implementation of the territory provisions of the MOA-AD presupposes changes in the legal framework, which the GRP panel guaranteed under paragraph 7 on Governance.

23 Paragraph 2.a, Territory states: a. The GRP and MILF as the Parties to this Agreement commit themselves to the full and mutual implementation of this framework agreement on territory with the aim of resolving outstanding issues that emanate from the consensus points on Ancestral Domain. 188 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Additionally, paragraph 7 on Governance provides that necessary changes to the legal framework shall likewise be effected “with due regard to non-derogation of prior agreements.” This can only mean that any change to the legal framework 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 take-off points for the necessary changes that will be effected to fully implement the MOA-AD. In my opinion, the MOA-AD 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 Comprehensive Compact shall have prescribed the timeframe for effecting these changes, the MOA-AD shall have become a prior agreement that is subject to the non-derogation clause found in paragraph 7 on Governance. This signifies that any change in the legal framework should adapt to the terms of the MOA-AD. The latter becomes the parameter of any statutory or constitutional amendments which are necessary to make the MOA-AD effective. As such, it cannot be denied that the GRP panel committed itself to the full implementation of the MOA-AD by effecting changes to the legal framework. Respondents cannot deny this by saying that the parties further undertook to negotiate a Comprehensive Compact or a final peace agreement. Although it may be conceded that the parties have yet to enter into a Comprehensive Compact subsequent to the signing of the MOA- AD, the nature of this compact shows that the MOA-AD was intended as the controlling document for the essential terms of the Comprehensive Compact. Paragraphs 3 and 7 of the MOA- AD provisions on Governance invariably describe the Comprehensive Compact as merely embodying details for the effective enforcement and actual implementation of the MOA- AD. Thus, the Comprehensive Compact will simply lay down the particulars of the parties’ final commitments, as expressed in the assailed agreement. Consequently, paragraph 7 on Governance in relation to paragraph 2(a) on Territory contradict respondents’ assertion PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J YNARES-SANTIAGO, CONCURRING OPINION 189 that the MOA-AD is merely a preparatory agreement devoid of any real effects. The language employed in these provisions do not support respondents’ contention that the MOA-AD is just a reference for future negotiations or consists of mere proposals that are subject to renegotiation. The words used in these provisions are categorical in stating that the GRP panel committed itself to the full implementation of the MOA-AD by effecting changes to the legal framework within a stipulated timeframe. In other words, these are definite propositions that would have to be undertaken under the agreement of the parties. The foregoing discussion demonstrates that the MOA-AD is not merely a draft of consensus points that is subject to further negotiations between the GRP panel and the MILF. The language of the MOA-AD shows that the GRP panel made a real and actual commitment to fully implement the MOA-AD by effecting the necessary amendments to existing laws and the Constitution. The GRP panel’s obligation to fully implement the provisions on Territory and to effect these “necessary changes” is in itself not dependent on any statutory or constitutional amendment. It is only subject to a timeframe that will be specified in the Comprehensive Compact, per stipulation of the parties. At this point, it is worth noting that the MOA-AD cannot even be subjected to subsequent legal processes, such as a plebiscite or statutory and constitutional amendments. The MOA-AD cannot be validated by any of these means considering that the GRP panel does not even have the power to make these legal processes occur. This is because the panel is not authorized to commit to statutory and constitutional changes to fully implement the MOA-AD. Thus, it is not legally possible to undertake these legal processes under the circumstances provided in the agreement. To emphasize, the GRP panel had neither power nor authority to commit the government to statutory and constitutional changes. The power to amend laws and to cause amendments or revisions to the Constitution belongs to Congress and, to a certain extent, the people under a system of initiative and referendum. Only Congress and the people have the competence to effect statutory and constitutional changes 190 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

in the appropriate manner provided by law. The GRP panel, as a mere organ of the Executive branch, does not possess any such prerogative. In the matter of legislation, it is settled that the power of Congress under Article VI, Section 124 of the Constitution is plenary and all-encompassing. The 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. As held in Ople v. Torres:25 x x x Legislative power is “the authority, under the Constitution, to make laws, and to alter and repeal them.” The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Similarly, the power to amend or revise the Constitution also pertains to Congress in the exercise of its constituent functions. The same power is also reserved to the people under a system of initiative, pursuant to Article XVII26 of the Constitution. In Lambino v. COMELEC,27 the Court stated that

24 ART. VI, SECTION 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. 25 354 Phil. 948, 966 (1998).

26 ART. XVII – Amendments or Revisions

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members, or (2) A constitutional convention.

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x. 27 G.R. No. 174153, October 25, 2006, 505 SCRA 160, 247. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J YNARES-SANTIAGO, CONCURRING OPINION 191 there are three modes of amending the Constitution under Article XVII. The first mode is through Congress, acting as a constituent assembly, upon three-fourth’s vote of all its Members; the second mode is through a constitutional convention created under a law passed by Congress; and the third mode is through a people’s initiative. Nowhere in the Constitution does it state that the Executive or any of its organs can effect constitutional changes, as assumed by the GRP panel under the MOA-AD. Notwithstanding the apparent lack of power or authority, the GRP panel undertook to effect changes to the Constitution and to statutes in order to fully implement the MOA-AD. In doing so, the GRP panel pre-empted Congress by determining, firsthand, the wisdom of effecting these changes as well as the nature of the required amendments to laws and the Constitution. It encroached upon the exclusive prerogative of Congress by assuming to exercise a discretion that it did not possess. It thus exceeded its authority and acted without jurisdiction. It should have been evident to the GRP panel that it could not bargain away laws enacted by Congress or the people’s sovereign will as expressed in the Constitution. Apart 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 Memorandum of Instructions From the President dated March 1, 2001. The President clearly directed therein that “(t)he negotiations shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the principles of sovereignty and territorial integrity of the Republic of the Philippines.” The GRP panel did otherwise and failed to act in accordance with this directive. The GRP panel derives its authority from the Chief Executive, whose sworn duty is to faithfully execute the laws and uphold the Constitution. In negotiating the terms of the MOA-AD, however, the GRP panel violated our Constitution and our laws by subscribing to stipulations that could very well lead to their emasculation. The GRP panel agreed to illegal and unconstitutional concessions and guaranteed the performance of a prestation that it could not deliver. This constitutes 192 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I manifest grave abuse of discretion amounting to lack or excess of jurisdiction. It is beyond question that the MOA-AD is patently unconstitutional. Had it been signed by the parties, it would have bound the government to the creation of a separate Bangsamoro state having its own territory, government, civil institutions and armed forces. The concessions that respondents made to the MILF would have given the latter leverage to demand that the Bangsamoro homeland be recognized as a state before international bodies. It could insist that the MOA-AD is in fact a treaty and justify compliance with its provisions, under the international law principle of pacta sunt servanda. The sovereignty and territorial integrity of the Philippines would have been compromised. For these reasons, I vote to grant the petitions. Respondents must be prohibited and permanently enjoined from negotiating, executing and entering into a peace agreement with terms similar to the MOA-AD. Although respondents have manifested that the MOA-AD will not be signed “in its present form or in any other form,” the agreement must nonetheless be declared unconstitutional and, therefore, void ab initio, to remove any doubts regarding its binding effect on the Republic. Under no circumstance could the MOA-AD acquire legitimacy and force against the entire nation, and no less than a categorical declaration to this effect should put the issue to rest. I so vote. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 193

SEPARATE CONCURRING OPINION Carpio, J.: If this Court did not stop the signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD), this country would have been dismembered because the Executive branch would have committed to amend the Constitution to conform to the MOA-AD. The MOA-AD gives to the Bangsamoro Juridical Entity (BJE) the attributes of a state, with its own people, territory, government, armed forces, foreign trade missions, and all other institutions of a state,1 under the BJE’s own basic law or constitution.2

USURPATION OF THE POWERS OF CONGRESS AND THE PEOPLE

The initialed MOA-AD between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) is patently unconstitutional. The Executive branch’s commitment under the MOA-AD to amend the Constitution to conform to the MOA-AD violates Sections 1 and 4, Article XVII

1 Paragraph 8 on Governance of the MOA-AD provides: “The Parties agree that the BJE shall be empowered to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society the details of which shall be discussed in the negotiation of the Comprehensive Compact.” (Emphasis supplied) 2 Paragraph 6 on Governance of the MOA-AD provides: “The modalities for the governance intended to settle the outstanding negotiated political issues are deferred after the signing of the MOA-AD. The establishment of institutions for governance in a Comprehensive Compact, together with its modalities during the transition period, shall be fully entrenched and established in the basic law of the BJE. The Parties shall faithfully comply with their commitment to the associative arrangements upon entry into force of a Comprehensive Compact.” (Emphasis supplied) 194 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

of the Constitution. The Executive branch usurps the sole discretionary power of Congress to propose amendments to the Constitution as well as the exclusive power of the sovereign people to approve or disapprove such proposed amendments. Sections 1 and 4, Article XVII of the Constitution provide:

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention.

SEC. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Indisputably, the Executive branch has no power to commit to the MILF that the Constitution shall be amended to conform to the MOA-AD. Such commitment is a grave abuse of discretion amounting to lack or excess of jurisdiction.3 The MOA-AD states, in paragraph 2(a) on Territory, that “the Parties to this Agreement commit themselves to the full and mutual implementation of this framework agreement.” The MOA-AD further states, in paragraph 7 on Governance, that: Any provisions of the MOA on Ancestral Domain requiring amendments to the existing legal framework shall come into force upon signing of a comprehensive compact and upon

3 Section 1, Article VIII of the Constitution provides: “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial 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 lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 195

effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. (Emphasis supplied) The Executive branch commits to implement fully the MOA- AD by amending the “existing legal framework,” impliedly referring to the Constitution. The Executive branch further commits that such constitutional amendments shall not derogate from prior GRP-MILF agreements. At the time of the constitutional amendments, the MOA-AD will be a prior agreement, along with several other GRP-MILF agreements.4 The phrase “due regard to non-derogation of prior agreements” means there shall be no deviation from previous GRP-MILF agreements. The word “due” means a right to something, as in something that is “due” a person. This is the same usage of the word “due” in the phrase “due process of law,” which means one’s right to legal process. The word “regard” means attention or observance. “Non-derogation” means no deviation. Thus, “due regard to non-derogation of prior agreements” simply means observance of what the MILF is entitled under previous GRP-MILF agreements, to which there shall be no deviation. The phrase “due regard” means mandatory observance and not discretionary observance. When one speaks of “due regard for the law,” one intends mandatory observance of the law. The same is true for “due regard to non-derogation of prior agreements,” which means mandatory observance of non- derogation of previous agreements. The following pronouncements of the Court reveal the mandatory nature of the phrase “due regard”:

4 Some of these agreements are mentioned in the Terms of Reference of the MOA-AD. In their Compliance dated September 22, 2008, respondents included the following agreements not mentioned in the Terms of Reference: (1) Implementing Guidelines on the Humanitarian, Rehabilitation and Development Aspects of the GRP- MILF Tripoli Agreement on Peace of 2001 dated May 7, 2002; and (2) Implementing Guidelines on the Security Aspect of the GRP- MILF Tripoli Agreement on Peace of 2001 dated August 7, 2001. 196 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

The least this Court can do under the circumstances is to make clear to all and sundry, especially to members of police forces, that the authority conferred on them to maintain peace and order should be exercised with due regard to the constitutional rights, most especially so of those who belong to the lower- income groups. If in a case like the present, the full force of the penal statute is not felt by the perpetrator of the misdeed, then the law itself stands condemned. This we should not allow to happen.5 (Emphasis supplied) Entrapment is allowed when it is undertaken with due regard to constitutional and legal safeguards. It has repeatedly been accepted as a valid means of arresting violators of the Dangerous Drugs Law.6 (Emphasis supplied) The phrase “due regard” is commonly found in international treaties and conventions, like the United Nations Convention on the Law of the Sea (UNCLOS) where the phrase appears at least 16 times. The phrase “due regard” as used in UNCLOS is explained as follows: [T]he requirement of “due regard” is a qualification of the rights of States in exercising the freedoms of the high seas. The standard of “due regard” requires all States, in exercising their high seas freedoms, to be aware of and consider the interests of other States in using the high seas, and to refrain from activities that interfere with the exercise by other States of the freedom of the high seas. As the ILC [which prepared drafts of the 1958 LOS Conventions], stated in its Commentary in 1956, “States are bound to refrain from any acts that might adversely affect the use of the high seas by nationals of other States.” The construction in paragraph 2 recognizes that all States have the right to exercise high seas freedoms, and balances consideration for the rights and interests of all states in this regard.7 (Emphasis supplied)

5 People v. Gumahin, 128 Phil. 728, 757 (1967). 6 People v. Padasin, 445 Phil. 448, 455 (2003).

7 George K. Walker, DEFINING TERMS IN THE 1982 LAW OF THE SEA CONVENTION IV: THE LAST ROUND OF DEFINITIONS PROPOSED BY THE INTERNATIONAL LAW ASSOCIATION (AMERICAN BRANCH) LAW OF THE SEA COMMITTEE, California Western PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 197

The phrase “due regard,” as used in the Convention on International Civil Aviation, is understood as giving rise to “a duty of ‘due regard’ upon operators of state aircraft, and thus, upon military aircraft, for the safety of the navigation of civil aircraft.”8 Thus, “the ‘due regard’ rule remains the principal treaty obligation imposed upon States for the regulation of the flight of military aircraft applicable during times of peace and armed conflict.”9 The Chairman of the MILF and its highest-ranking official, Al Haj Murad Ebrahim, candidly admitted that the MILF’s understanding is that the Constitution shall be amended to conform to the MOA-AD. In an ABS-CBN television interview aired nationwide on August 20, 2008, and widely reported in the newspapers, MILF Chairman Murad stated: It may be beyond the Constitution but the Constitution can be amended and revised to accommodate the agreement. What is important is during the amendment, it will not derogate or water down the agreement because we have worked this out for more than 10 years now.10 (Emphasis supplied) During the oral arguments, Atty. Sedfrey Candelaria, principal counsel to the GRP Panel, when asked about this statement, did not dispute that MILF Chairman Murad made the statement. Atty. Candelaria simply told the Court that MILF Chairman Murad “did not sit in the negotiating table.”11

International Law Journal, Fall 2005, citing the Commentary of John E. Noyes in the Consolidated Glossary of Technical Terms Used in the United Nations Convention on the Law of the Sea, published by the International Hydrographic Organization (IHO) Technical Aspects of the Law of the Sea Working Group.

8 Michel Bourbonniere and Louis Haeck, MILITARY AIRCRAFT AND INTERNATIONAL LAW: CHICAGO OPUS 3, Journal of Air Law and Commerce, Summer 2001. 9 Id. 10 11 TSN, August 29, 2008, pp. 190–191 and 239. 198 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Clearly, under the MOA-AD, the Executive branch assumes the mandatory obligation to amend the Constitution to conform to the MOA-AD. During the oral arguments, Atty. Sedfrey Candelaria admitted that the implementation of the MOA-AD requires “drastic changes” to the Constitution.12 As directed by Justice Antonio T. Carpio, Atty. Candelaria undertook to submit to the Court a listing of all provisions in the Constitution that needed amendment to conform to the MOA-AD.13 In their Memorandum dated September 24, 2008, respondents stated: “In compliance with the said directive, the constitutional provisions that may be affected, as relayed by Atty. Sedfrey Candelaria, are the following — Sections 1, 5, 18, 20 and 21 of Article X under Local Autonomy.”14 This listing is grossly incomplete. A more thorough scrutiny shows that the “drastic changes” are amendments to the following provisions of the Constitution: 1. Article 1 on the National Territory.15 During the oral arguments, Atty. Sedfrey Candelaria stated that this provision would have to be amended to conform to the MOA-AD.16

12 Id. at 297. 13 Id. at 296–298. 14 Memorandum of Respondents dated September 24, 2008, p. 56. 15 Article I on the Constitution provides: “The national territory comprises the Philippine archipelago, with all the islands 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.” 16 TSN, August 29, 2008, p. 276. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 199

2. Section 3, Article II on the role of the Armed Forces of the Philippines as “protector of the people and the State.”17 Under the MOA-AD, the AFP’s role is only to defend the BJE against external aggression.18 3. Article III on the Bill of Rights. The MOA-AD does not state that the Bill of Rights will apply to the BJE. The MOA-AD refers only to “internationally recognized human rights

17 Section 3, Article II of the Constitution provides: “Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.” (Emphasis supplied) 18 Paragraph 4 on Resources of the MOA-AD provides: “The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines; provided, further that it shall remain the duty and obligation of the Central Government to take charge of external defense. Without prejudice to the right of the Bangsamoro juridical entity to enter into agreement and environmental cooperation with any friendly country affecting its jurisdiction, it shall include: a. the option to establish and open Bangsamoro trade missions in foreign countries with which it has economic cooperation agreements; and b. the elements bearing in mind the mutual benefits derived from Philippine archipelagic status and security. And, in furtherance thereto, the Central Government shall take necessary steps to ensure the BJE’s participation in international meetings and events, e.g. ASEAN meetings and other specialized agencies of the United Nations. This shall entitle the BJE’s participation in Philippine official missions and delegations that are engaged in the negotiation of border agreements or protocols for environmental protection, equitable 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.” (Emphasis supplied) 200 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

instruments”19 such as the United Nations Universal Declaration on Human Rights, International Humanitarian Law, and the United Nations Declaration on the Rights of Indigenous Peoples. No reference is made to the Bill of Rights or even to the Constitution. 4. Section 1, Article VI on the Legislative Department.20 Legislative power shall no longer be vested solely in the Congress of the Philippines. Under the MOA-AD, the BJE shall “build, develop and maintain its own institutions” 21 like a legislature whose laws are not subordinate to laws passed by Congress.22 19 Paragraph 6 on Terms of Reference of the MOA-AD provides: “ILO Convention No. 169, in correlation to the UN Declaration on the Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter; the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), and internationally recognized human rights instruments.” (Emphasis supplied) 20 Section 1, Article VI of the Constitution provides: “The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.” (Emphasis supplied) 21 Paragraph 8 on Governance of the MOA-AD, see note 1. 22 Section 20, Article X of the Constitution provides: “Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 201

5. Section 1, Article VII on executive power.23 Executive power shall no longer be vested exclusively in the President of the Philippines. The BJE shall have its own Chief Executive who will not be under the supervision of the President.24 6. Section 16, Article VII on the President’s power to appoint certain officials, including military officers from the rank of colonel or naval captain, with the consent of the Commission on Appointments.25 All public officials in the BJE, including military officers of any rank in the BJE internal security force, will be appointed in accordance with the BJE’s own basic law or constitution.

(8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Emphasis supplied) 23 Section 1, Article VII of the Constitution provides: “The executive power shall be vested in the President of the Philippines.” 24 Section 4, Article X of the Constitution provides: “The President of the Philippines shall exercise general supervision over local governments. 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.” (Emphasis supplied) 25 Section 16, Article VII of the Constitution provides: “The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.” (Emphasis supplied) 202 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

7. Section 17, Article VII on the President’s control over all executive departments.26 The President will not control executive bureaus or offices in the BJE, like foreign trade missions of the BJE. 8. Section 18, Article VII on the President as “Commander- in-Chief of all armed forces of the Philippines.”27 Under the MOA-AD, the President will not be the Commander-in- Chief of the BJE’s internal security force. The BJE’s internal security force will not be part of the AFP chain of command. 9. Section 21, Article VII on the ratification of treaties and international agreements by the Senate.28 This will not apply to the BJE which, under the MOA-AD, has the power to enter into economic and trade treaties with other countries.29 10. Section 1, Article VIII on judicial power being vested in one Supreme Court.30 Since the BJE will have “its own x x x judicial system,”31 the BJE will also have its own Supreme Court.

26 Section 17, Article VII of the Constitution provides: “The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.” 27 Section 18, Article VII of the Constitution provides: “The President shall be the Commander-in-Chief 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. x x x.” (Emphasis supplied) 28 Section 21, Article VII of the Constitution provides: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” 29 See note 18. 30 Section 1, Article VIII of the Constitution provides: “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.” 31 See note 1. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 203

11. Section 2, Article VIII on the power of Congress to define and apportion the jurisdiction of lower courts.32 Under the MOA-AD, Congress cannot prescribe the jurisdiction of BJE courts. 12. Section 5(2), Article VIII on the power of the Supreme Court to review decisions of lower courts and to promulgate rules of pleadings and practice in all courts.33 Under the MOA-AD, the BJE will have its own judicial system.

32 Section 2 of Article VIII provides: “The Congress shall have the power to define, prescribe, and apportion the jurisdiction of various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.” (Emphasis supplied) 33 Section 5(2), Article VIII of the Constitution provides: “The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. 204 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Decisions of BJE courts are not reviewable by the Supreme Court. 13. Section 5(6), Article VII on the power of the Supreme Court to appoint all officials and employees in the Judiciary.34 This power will not apply to courts in the BJE. 14. Section 6, Article VIII on the Supreme Court’s administrative supervision over all courts and their personnel.35 Under the MOA-AD, the Supreme Court will not exercise administrative supervision over BJE courts and their personnel.

(e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive 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. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.” (Emphasis supplied) 34 Id. 35 Section 6, Article VIII of the Constitution provides: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 205

15. Section 9, Article VIII on the appointment by the President of all judges in the Judiciary from nominees recommended by the Judicial and Bar Council.36 This provision will not apply to courts in the BJE. 16. Section 11, Article VIII on the power of the Supreme Court to discipline judges of all lower courts.37 This power will not apply to judges in the BJE. 17. Section 1(1), Article IX-B on the power of the Civil Service Commission to administer the civil service.38 Under the MOA-AD, the BJE will have “its own x x x civil service”39 The Civil Service Commission will have no jurisdiction over the BJE’s civil service. 36 Section 9, Article VIII of the Constitution provides: “The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within 90 days from the submission of the list.” (Emphasis supplied) 37 Section 11, Article VIII of the Constitution provides: “The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of 70 years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.” (Emphasis supplied) 38 Section 1(1), Article IX-B of the Constitution provides: “The Civil Service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least 35 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.” (Emphasis supplied) 39 See note 1. 206 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

18. Section 2(1), Article IX-C on the power of the Commission on Elections to enforce and administer all election laws.40 Under the MOA-AD, the BJE will have “its own x x x electoral system.”41 The Commission on Elections will have no jurisdiction over the BJE’s electoral system. 19. Section 2(1), Article IX-D on the power of the Commission on Audit to examine and audit all subdivisions, agencies and instrumentalities of the Government.42 Under the MOA- AD, the BJE can “build, develop and maintain its own 40 Section 2(1), Article IX-C of the Constitution provides: “The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.” (Emphasis supplied) 41 See note 1. 42 Section 2(1), Article IX-D of the Constitution provides: “The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non- governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.” (Emphasis supplied) PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 207

institutions”43 without limit. The BJE can create its own audit authority. The Commission on Audit will have no jurisdiction over the BJE or its subdivisions, agencies or instrumentalities. 20. Section 1, Article X on the political subdivisions of the Philippines.44 A new political subdivision for the BJE will have to be created. 21. Section 4, Article X on the power of the President to exercise general supervision over all local governments.45 Under the MOA-AD, this provision will not apply to the BJE. 22. Section 5, Article X subjecting the taxing power of local governments to limitations prescribed by Congress.46 Under the MOA-AD, the BJE shall have “its own x x x legislation.”47 The BJE’s taxing power will not be subject to limitations imposed by national law.

43 See note 1. 44 Section 1, Article X of the Constitution provides: “The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.” 45 Section 4, Article X of the Constitution provides: “The President of the Philippines shall exercise general supervision over local governments. 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.” (Emphasis supplied) 46 Section 5, Article X of the Constitution provides: “Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.” (Emphasis supplied) 47 See note 1. 208 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

23. Section 6, Article X on the “just share” of local government units in national taxes.48 Since the BJE is in reality independent from the national government, this provision will have to be revised to reflect the independent status of the BJE and its component cities, municipalities and barangays vis-à-vis other local government units. 24. Section 10, Article X on the alteration of boundaries of local government units, which requires a plebiscite “in the political units affected.”49 Under paragraph 2(d) on Territory of the MOA-AD,50 the plebiscite is only in the barangays and municipalities identified as expansion areas of the BJE. There will be no plebiscite “in the political units affected,” which should include all the barangays within a city, and all municipalities within a province. 25. Section 15, Article X on the creation of autonomous regions within the framework of the Constitution, national sovereignty and territorial integrity of the Philippines.51 This will have to be revised since under the MOA-AD the BJE has all the attributes of a state. 48 Section 6, Article X of the Constitution provides: “Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.” 49 Section 10, Article X of the Constitution provides: “No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.” (Emphasis supplied) 50 Paragraph 2(d) on Territory of the MOA-AD provides. “Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within 12 months following the signing of the MOA- AD, a plebiscite covering the areas enumerated in the list and depicted in the map as Category A attached herein (the “Annex”).” (Emphasis supplied) 51 Section 15, Article X of the Constitution provides: “There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 209

26. Section 16, Article X on the President’s power to exercise general supervision over autonomous regions.52 This provision will not apply to the BJE, which is totally independent from the President’s supervision. 27. Section 17, Article X which vests in the National Government residual powers, or those powers which are not granted by the Constitution or laws to autonomous regions.53 This will not apply to the BJE. 28. Section 18, Article X which requires that personal, family and property laws of autonomous regions shall be consistent with the Constitution and national laws.54 This geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.” (Emphasis supplied) 52 Section 16, Article X of the Constitution provides: “The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed.” 53 Section 17, Article X of the Constitution provides: “All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.” 54 Section 18, Article X of the Constitution provides: “The Congress 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. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a 210 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

will not apply to the BJE which will have its own basic law or constitution.55 29. Section 20, Article X on the legislative powers of autonomous regional assemblies whose laws are subject to the Constitution and national laws.56 This provision will not apply to the BJE. 30. Section 21, Article X on the preservation of peace and order within autonomous regions by the local police as provided in national laws.57 Under the MOA-AD, the BJE shall have “its own x x x police”58 to preserve peace and order within the BJE. 31. Section 2, Article XII on State ownership of all lands of the public domain and of all natural resources in the Philippines.59 Under paragraph 3 on Concepts and 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.” 55 See note 2. 56 See note 22. 57 Section 21, Article X of the Constitution provides: “The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government.” (Emphasis supplied) 58 See note 1. 59 Section 2, paragraph 1, Article XII of the Constitution provides: “All lands of the public domain, waters, minerals, coal, petroleum, 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 exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 211

Principles of the MOA-AD,60 ancestral domain, which consists of ancestral lands and the natural resources in such lands, does not form part of the public domain. The ancestral domain of the Bangsamoro refers to land they or their ancestors continuously possessed since time immemorial, excluding the period that their possession was disrupted by conquest, war, civil disturbance, force majeure, other forms of usurpation or displacement by force, deceit or stealth, or as a consequence of government project, or any voluntary dealings by the government and private parties. Under paragraph 1 on Concepts and Principles of the MOA-AD,61 the Bangsamoro people are or corporations or associations at least 60 percent of whose capital is owned by such citizens. Such agreements may be for a period not exceeding 25 years, renewable for not more than 25 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.” (Emphasis supplied) 60 Paragraph 3 on Concepts and Principles of the MOA-AD provides: “Both Parties acknowledge 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. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.” (Emphasis supplied) 61 Paragraph 1 on Concepts and Principles of the MOA-AD provides: “It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros.” The Bangsamoro people refers to those who are natives or original 212 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

the Moros and all indigenous peoples of Mindanao, Sulu and Palawan. Thus, the ancestral domain of the Bangsamoro refers to the lands that all the peoples in Mindanao, Sulu and Palawan possessed before the arrival of the Spaniards in 1521. In short, the ancestral domain of the Bangsamoro refers to the entire Mindanao, Sulu and Palawan. This negates the Regalian doctrine in the 1935, 1973 and 1987 Constitutions. 32. Section 9, Article XII on the establishment of an independent economic and planning agency headed by the President.62 This agency is the National Economic and Development Authority. Under the MOA-AD, the BJE will have its own economic planning agency. 33. Section 20, Article XII on the establishment of an independent monetary authority, now the Bangko Sentral ng Pilipinas.63

inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected.” (Emphasis supplied) 62 Section 9, Article XII of the Constitution provides: “The Congress 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 Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government.” (Emphasis supplied) 63 Section 20, Article XII of the Constitution provides: “The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 213

Under the MOA-AD, the BJE will have its own financial and banking authority.64 34. Section 4, Article XVI on the maintenance of “a regular force necessary for the security of the State.”65 This provision means there shall only be one “Armed Forces of the Philippines” under the command and control of the President. This provision will not apply to the BJE since under the MOA-AD, the BJE shall have “its own x x x internal security force”66 which will not be under the command and control of the President. 35. Section 5(6), Article XVI on the composition of the armed forces, whose officers and men must be recruited proportionately from all provinces and cities as far as practicable.67 This will not apply to the BJE’s internal security force whose personnel will come only from BJE areas. 36. Section 6, Article XVI on the establishment of one police force which shall be national in scope under the administration and control of a national police the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions. Until the Congress otherwise provides, the Central Bank of the Philippines, operating under existing laws, shall function as the central monetary authority.” (Emphasis supplied) 64 See note 1. 65 Section 4, Article XVI of the Constitution provides: “The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve, as may be provided by law. It shall keep a regular force necessary for the security of the State.” (Emphasis supplied) 66 See note 1. 67 Section 5(6), Article XVI of the Constitution provides: “The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable.” 214 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

commission.68 The BJE will have “its own x x x police”69 which is a regional police force not administered or controlled by the National Police Commission. The Executive branch thus guarantees to the MILF that the Constitution shall be drastically overhauled to conform to the MOA-AD. The Executive branch completely disregards that under the Constitution the sole discretionary power to propose amendments to the Constitution lies with Congress,and the power to approve or disapprove such proposed amendments belongs exclusively to the people. The claim of respondents that the phrase “prior agreements” does not refer to the MOA-AD but to GRP-MILF agreements prior to the MOA-AD is immaterial. Whether the prior agreement is the MOA-AD or any other GRP-MILF agreement prior to the constitutional amendments, any commitment by the Executive branch to amend the Constitution without derogating from such prior GRP-MILF agreement would still be unconstitutional for the same reason – usurpation by the Executive branch of the exclusive discretionary powers of Congress and the Filipino people to amend the Constitution.

VIOLATION OF CONSTITUTIONAL RIGHTS OF LUMADS

Under the MOA-AD, the Executive branch also commits to incorporate all the Lumads in Mindanao, who are non-Muslims, into the Bangsamoro people who are Muslims. There are 18 distinct Lumad groups in Mindanao with their own ancestral domains and their own indigenous customs, traditions and beliefs. The Lumads have lived in Mindanao long before the arrival of Islam and Christianity. For centuries, the Lumads have resisted Islam, a foreign religion like Christianity. To this day,

68 Section 6, Article XVI of the Constitution provides: “The 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. The authority of local executives over the police units in their jurisdiction shall be provided by law.” (Emphasis supplied) 69 See note 1. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 215 the Lumads proudly continue to practice their own indigenous customs, traditions and beliefs. Suddenly, without the knowledge and consent of the Lumads, the Executive branch has erased their identity as separate and distinct indigenous peoples. The MOA-AD, in paragraph 1 on Concepts and Principles, provides: It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros.” The Bangsamoro 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 conquest or colonization and their descendants whether mixed or of full native blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the indigenous people shall be respected. (Emphasis supplied) The declaration that it is the “birthright of x x x all Indigenous peoples of Mindanao to identify themselves and be accepted as ‘Bangsamoros’” is cultural genocide. It erases by a mere declaration the identities, culture, customs, traditions and beliefs of 18 separate and distinct indigenous groups in Mindanao. The “freedom of choice” given to the Lumads is an empty formality because officially from birth they are already identified as Bangsamoros. The Lumads may freely practice their indigenous customs, traditions and beliefs, but they are still identified and known as Bangsamoros under the authority of the BJE. The MOA-AD divests the Lumads of their ancestral domains and hands over possession, ownership and jurisdiction of their ancestral domains to the BJE. In paragraphs 2, 3 and 6 on Concepts and Principles, the MOA-AD gives ownership over the Bangsamoros’ ancestral domain to the Bangsamoro people, defines the ancestral domain of the Bangsamoros, and vests jurisdiction and authority over such ancestral domain in the BJE, thus: 2. It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s humanitarian and economic needs as well as their 216 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

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 Bangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants. 3. x x x Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually x x x. x x x x 6. Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral territory, as well as the delineation of ancestral domains/lands of the Bangsamoro people located therein. (Emphasis supplied) After defining the Bangsamoro people to include all the Lumads, the MOA-AD then defines the ancestral domain of the Bangsamoro people as the ancestral domain of all the Bangsamoros, which now includes the ancestral domains of all the Lumads. The MOA-AD declares that exclusive ownership over the Bangsamoro ancestral domain belongs to the Bangsamoro people. The MOA-AD vests jurisdiction and authority over the Bangsamoros’ ancestral domain in the BJE. Thus, the Lumads lost not only their separate identities but also their ancestral domains to the Bangsamoros and the BJE. The incorporation of the Lumads as Bangsamoros, and the transfer of their ancestral domains to the BJE, without the Lumads’ knowledge and consent,70 violate the Constitutional

70 Philippine Daily Inquirer, August 27, 2008; see also . PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 217

guarantee that the “State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.”71 The incorporation also violates the Constitutional guarantee that the “State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural minorities to their ancestral lands to ensure their economic, social, and cultural well-being.”72 These Constitutional guarantees, as implemented in the Indigenous Peoples’ Rights Act of 1997, grant the Lumads “the right to participate fully, if they so chose, at all levels of decision- making in matters which may affect their rights, lives and destinies.”73 Since the Executive branch kept the MOA-AD confidential until its publication in the Philippine Daily Inquirer on August 4, 2008, the day before its scheduled signing in Kuala Lumpur, Malaysia, there could have been no participation by

71 Section 22, Article II of the Constitution provides: “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.” 72 Section 5, Article XII of the Constitution provides: “The State, subject to the provisions of this Constitution and 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. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.” 73 Section 16 of the Indigenous Peoples’ Rights Act of 1997 (RA No. 8371) provides: “Right to Participate in Decision-Making. – ICCs/ IPs have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through procedures determined by them as well as to maintain and develop their own indigenous political structures. Consequently, the State shall ensure that the ICCs/IPs shall be given mandatory representation in policy-making bodies and other local legislative councils.” (Emphasis supplied) 218 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I the 18 Lumad groups of Mindanao in their incorporation into the Bangsamoro. This alone shows that the Executive branch did not consult, much less secure the consent, of the Lumads on their rights, lives and destinies under the MOA-AD. In fact, representatives of the 18 Lumad groups met in Cagayan de Oro City and announced on August 27, 2008, through their convenor Timuay Nanding Mudai, that “we cannot accept that we are part of the Bangsamoro.” 74 The incorporation of the Lumads, and their ancestral domains, into the Bangsamoro violates the Constitutional and legislative guarantees recognizing and protecting the Lumads’ distinct cultural identities as well as their ancestral domains. The violation of these guarantees makes the MOA-AD patently unconstitutional. The incorporation of the Lumads, and their ancestral domains, into the Bangsamoro without the Lumads’ knowledge and consent also violates Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples.75 Section 8 of the Declaration states:

74 See note 70; TSN, August 29, 2008, p. 183. 75 Adopted overwhelmingly by the United Nations General Assembly by a vote of 143–5 on September 13, 2007. Those who voted against were the United States, Canada, Australia and New Zealand. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 219

(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them. (Emphasis supplied) The provisions of Article 8 were designed to prevent cultural genocide of indigenous peoples. This will happen if the Lumads are identified from birth as Bangsamoros and their ancestral domains are absorbed into the ancestral domain of the Bangsamoros. There is another provision in the MOA-AD that could prove oppressive to the Lumads, and even invite conflicts with Christians. The MOA-AD, in paragraph 4 on Territory, empowers the BJE to establish political subdivisions within the Bangsamoro ancestral domain, as follows: All territorial and geographic areas in Mindanao and its adjacent islands including Palawan and the Sulu archipelago that have been declared recognized, and/or delineated as ancestral domain and ancestral land of the Bangsamoro people as their geographical areas, inclusive of settlements and reservations, may be formed or constituted into political subdivisions of the Bangsamoro territorial jurisdictions subject to the principles of equality of peoples and mutual respect and to the protection of civil, political, economic, and cultural rights in their respective jurisdictions. Thus, the BJE can create political subdivisions – barangays and municipalities – within the Bangsamoro ancestral domain. Under the MOA-AD, the Bangsamoro ancestral domain includes the ancestral domains of the Lumads. The BJE can create barangays and municipalities in areas that are presently the ancestral domains of the Lumads. The BJE can station its police and internal security force in these areas. Many of these areas – the present ancestral domains of the Lumads – are located within provinces, cities and municipalities where Christians are the majority. 220 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

There are obvious possible adverse ramifications of this power of the BJE to create political subdivisions within provinces, cities and municipalities outside of the BJE territory. The creation by the BJE of such political subdivisions will alter the boundaries of the affected provinces, cities and municipalities, an alteration that, under the Constitution, requires an act of Congress and a plebiscite in the affected political units.76 The Executive branch must conduct widespread consultations not only with the Lumads, but also with the Christians who, under the MOA-AD, will be affected by the creation of such BJE political subdivisions within their provinces, cities and municipalities.

PETITIONS PRESENT JUSTICIABLE CONTROVERSY

The claim of respondents that the MOA-AD, not having been signed but merely initialed, does not give rise to an actual controversy cognizable by the Court, is gravely erroneous. The MOA-AD has two features: (1) as an instrument of cession of territory and sovereignty to a new state, the BJE; and (2) as a treaty with the resulting BJE, governing the associative relationship with the mother state,77 the Philippines, whose only important role in the relationship is “to take charge of external defense.”78 Justice Vicente V. Mendoza, a former member of this Court and a recognized authority on constitutional law, states:

76 Section 10, Article X of the Constitution provides: “No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.” (Emphasis supplied) 77 Justice Vicente V. Mendoza (ret.), The Legal Significance of the MOA on the Bangsamoro Ancestral Domain, lecture delivered at the College of Law, University of the Philippines on September 5, 2008. 78 Paragraph 4 on Resources of the MOA-AD; see note 18. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 221

It is indeed true that the BJE is not fully independent or sovereign and indeed it is dependent on the Philippine government for its external defense and only lacks foreign recognition, at least at the present time. Nonetheless it is a state as the Philippines was a state during the Commonwealth period, which was not a part of the territory of the United States although subject to its sovereignty. As a state, it was a signatory to several treaties and international agreements, such as the Charter of the United Nations of January 1, 1942, and a participant in several conferences such as that held in Bretton Woods, New Hampshire, on July 1–22, 1944, on the GATT. As the U.S. Supreme Court noted in Hooven & Allison Co. v. Evatt, the adoption of the 1935 Constitution prepared the way for the complete independence of the Philippines and the government organized under it had been given, in many aspects, by the United States “the status of an independent government which has been reflected in its relation as such with the outside world.” Similarly, the Supreme Court of the Philippines held in Laurel v. Misa that “the Commonwealth of the Philippines was a sovereign government although not absolute.”79 (Emphasis supplied) Thus, once the MOA-AD is signed, the MILF, as the acknowledged representative of the BJE, can exercise the rights of the BJE as a state. The MILF, on behalf of the BJE, can then demand that the Philippines comply, under the principle of pacta sunt servanda, with the express terms of the MOA-AD requiring the Philippines to amend its Constitution to conform to the MOA-AD. Under the 1969 Vienna Convention on the Law of Treaties, the Philippines cannot invoke its internal law, including its Constitution, as justification for non-compliance with the MOA- AD, which operates as a treaty between the GRP and the BJE.80 Thus, under international law, the Philippines is obligated to

79 See note 77. 80 Article 27 of the 1969 Vienna Convention on the Law of Treaties provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” 222 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I amend its Constitution to conform to the MOA-AD, whether Congress or the Filipino people agree or not. If this Court wants to prevent the dismemberment of the Philippines, a dismemberment that violates the Constitution, the Court should not wait for the GRP Panel to sign the MOA- AD. Once the MOA-AD is signed, international law steps in resulting in irreversible consequences extremely damaging to the sovereignty and territorial integrity of the Philippines. No subsequent ruling or order of this Court can undo this terrible damage, or put back a dismembered Philippines. The initialed MOA-AD already contains definitive and settled propositions between the GRP and the MILF, and all that is lacking are the signatures of the GRP and MILF representatives to make the MOA-AD a binding international agreement.81 Under these circumstances, the petitions certainly present an actual justiciable controversy of transcendental importance to the nation. The forum for the resolution of any dispute between the GRP and the MILF under a signed MOA-AD will not be this Court but the International Court of Justice (ICJ), which is not bound to respect the Philippine Constitution. The MILF, under the sponsorship of any member of the Organization of Islamic Conference (OIC)82 that recognizes the compulsory jurisdiction of the ICJ,83 can bring the dispute to the ICJ. The OIC Special 81 The initialing of the MOA-AD did not bind the GRP to the MOA-AD. The initialing was merely intended by the parties to authenticate the text of the MOA-AD. Article 12, 2(a) of the 1969 Vienna Convention on the Law of Treaties states that “the initialing of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed.” 82 The Malaysia Foreign Minister, the Special Adviser to the Malaysian Prime Minister, and the Secretary of Foreign Affairs of the Philippines are witnesses to the MOA-AD. 83 The Philippines, as a member of the United Nations, is ipso facto a party to the Statute of the International Court of Justice (Article 93[1], United Nations Charter). The Philippines signed on January 18, 1972 the Declaration Recognizing the Jurisdiction of the ICJ as Compulsory. At least 10 members of the Organization of Islamic Conference have also signed the Declaration. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 223

Envoy for the Peace Process in Southern Philippines, Ambassador Sayed Elmasry, who is also the Secretary-General of the OIC, is a signatory to the MOA-AD. Above the space reserved for his signature are the words “ENDORSED BY.” A party to the Statute of the ICJ, like the Philippines, is bound by the ICJ’s determination whether the ICJ has jurisdiction over a dispute.84 In deciding the issue of jurisdiction, the ICJ may or may not follow past precedents in the light of special circumstances of the case before it. The Philippines will be risking dismemberment of the Republic in the hands of an international tribunal that is not bound by the Philippine Constitution. More importantly, the BJE, represented by the MILF and endorsed by the OIC, may apply to be a party to the Statute of the ICJ and accept the compulsory jurisdiction of the ICJ.85 A State that recognizes the compulsory jurisdiction of the ICJ has the right to sue before the ICJ any State that has accepted the same compulsory jurisdiction of the ICJ.86 The fact that the BJE 84 Article 36(6) of the Statute of the ICJ provides: “In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.” 85 Article 93(2) of the Charter of the United Nations provides: “A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.” 86 Article 36(2) of the Statute of the International Court of Justice provides:

ARTICLE 36 1. x x x 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; 224 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I has all the attributes of a state, with the acknowledged power to enter into international treaties with foreign countries, gives the BJE the status and legal personality to be a party to a case before the ICJ.87 In fact, by agreeing in the MOA-AD that the BJE, on its own, can enter into international treaties,88 the Philippines admits and recognizes the international legal personality of the BJE, with the capacity to sue and be sued in international tribunals. In short, for this Court to wait for the signing of the MOA- AD before assuming jurisdiction will allow an international tribunal to assume jurisdiction over the present petitions, risking the dismemberment of the Republic. It is providential for the Filipino people that this Court issued the Temporary Restraining Order enjoining the signing of the MOA-AD in the nick of time on August 4, 2008. When the Court issued the TRO, the members of the GRP Panel were already on their way to Malaysia to sign the MOA-AD the following day, August 5, 2008, before representatives of numerous states from the OIC, Europe, North America, ASEAN and other parts of Asia. Indeed, public respondents should be thankful to this Court for saving them from inflicting an ignominious and irreversible catastrophe to the nation.

PETITIONS NOT MOOTED

The claim of respondents that the present petitions are moot because during the pendency of this case the President decided not to sign the MOA-AD, “in its present form or in any other form,”89 is erroneous. Once the Court acquires jurisdiction over c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. 87 Article 34(1) of the Statute of the ICJ provides: “Only states may be parties in cases before the Court.” 88 See note 18. 89 Memorandum of Respondents dated September 24, 2008, p. 7. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 225

a case, its jurisdiction continues until final termination of the case.90 The claim of respondents that the President never authorized the GRP Panel to sign the MOA-AD91 is immaterial. If the GRP Panel had no such authority, then their acts in initialing and in intending to sign the MOA-AD were in grave abuse of discretion amounting to lack or excess of jurisdiction, vesting this Court jurisdiction over the present petitions to declare unconstitutional such acts of the GRP Panel. Needless to say, the claim that the GRP Panel had no authority to sign the MOA-AD is a grave indictment of the members of the GRP Panel. At the very least this shows that the members of the GRP Panel were acting on their own, without following the instructions from the President as clearly laid down in the Memorandum of Instructions from the President dated March 1, 2001, which states in part: This Memorandum prescribes the guidelines for the Government Negotiating Panel (GPNP) for the peace negotiation process with the Moro Islamic Liberation Front (MILF): 1. The negotiations shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the principles of the sovereignty and territorial integrity of the Republic of the Philippines. 2. The negotiation process shall be pursued in line with the national Comprehensive Peace Process, and shall seek a principled and peaceful resolution of the armed conflict, with neither blame nor surrender, but with dignity for all concerned. 3. The objective of the GPNP is to attain a peace settlement that shall: a. Contribute to the resolution of the root cause of the armed conflict, and to societal reform, particularly in Southern Philippines; b. Help attain a lasting peace and comprehensive stability in Southern Philippines under a meaningful 90 People v. Vera, G.R. No. 26539, February 28, 1990, 182 SCRA 800, 809. 91 TSN, August 29, 2008, pp. 154–155. 226 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

program of autonomy for Filipino Muslims, consistent with the Peace Agreement entered into by the GRP and the MNLF on September 2, 1996; and c. Contribute to reconciliation and reconstruction in Southern Philippines. 4. The general approach to the negotiations shall include the following: a. Seeking a middle ground between the aspirations of the MILF and the political, social and economic objectives of the Philippine Government; b. Coordinated Third Party facilitation, where needed; c. Consultation with affected communities and sectors. (Emphasis supplied) Indisputably, the members of the GRP Panel had clear and precise instructions from the President to follow Philippine constitutional processes and to preserve the national sovereignty and territorial integrity of the Philippines.92 The members of the GRP Panel failed to follow their basic instructions from the President, and in the process, they recklessly risked the near dismemberment of the Republic.

GLARING HISTORICAL INACCURACY IN THE MOA-AD

The MOA-AD likewise contains a glaring historical inaccuracy. The MOA-AD declares the Bangsamoro as the single “First Nation.”93 The term “First Nations” originated in 92 The President’s Memorandum of Instructions dated September 8, 2003 reiterated verbatim paragraph 1 of the Memorandum of Instructions from the President dated March 1, 2001. 93 Paragraph 4 on Concepts and Principles of the MOA-AD provides: “Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense. As a domestic PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 227

Canada.94 The term refers to indigenous peoples of a territory, with the assumption that there are one or more subsequent nations or ethnic groups, different from the indigenous peoples, that settled on the same territory. Thus, in Canada, the United States, Australia and New Zealand, the white Europeans settlers are the subsequent nations belonging to a different ethnic group that conquered the indigenous peoples. In Canada, there is not a single First Nation but more than 600 recognized First Nations, reflecting the fact that the indigenous peoples belong to various “nation” tribes. In Mindanao, the Lumads who kept their indigenous beliefs, as well as those who centuries later converted to either Islam or Christianity, belong to the same ethnic Malay race. Even the settlers from Luzon and Visayas belong to the same ethnic Malay race. Declaring the Bangsamoros alone as the single “First Nation” is a historical anomaly. If ethnicity alone is the criterion in declaring a First Nation, then all peoples of Mindanao belonging to the Malay race are the First Nations. If resistance to foreign beliefs is the criterion in declaring a First Nation, then the 18 Lumad groups in Mindanao are the First Nations. When asked during the oral arguments why the MOA-AD declares the Bangsamoros as the single “First Nation,” the Solicitor General answered that “the MILF requested that they be considered a First Nation.”95 The GRP Panel should not readily agree to include in the text of the agreement, an official community distinct from the rest of the national communities, they have a definite historic homeland. They are the “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations. The Parties concede that the ultimate objective of entrenching the Bangsamoro 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.” (Emphasis supplied) 94 See Story of the Assembly of First Nations, . 95 TSN, August 29, 2008, pp. 718 and 721. 228 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

document, anything that the MILF Panel wants. Claims to historicity must be verified because historical inaccuracies have no place in a peace agreement that resolves a dispute rooted to a large extent in historical events.

THE COST OF REPARATION COULD BANKRUPT THE NATIONAL GOVERNMENT

The MOA-AD recognizes that the Bangsamoro’s ancestral domain, homeland and historic territory cover the entire Mindanao, Sulu and Palawan areas.96 While the MOA-AD recognizes “vested property rights,”97 other than licenses or contracts to exploit natural resources which are revocable at will by the BJE, the MOA-AD requires the Government to provide “adequate reparation” to the Bangsamoro for the “unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization.”98 Such unjust dispossession includes not only the lands taken from the Bangsamoro since the arrival of the Spaniards in 1521, but also 96 Paragraphs 1 and 3 on Concepts and Principles of the MOA-AD; see notes 49 and 50; Paragraph 1 on Territory of the MOA-AD provides: “The Bangsamoro homeland and historic territory refer to the 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. However, delimitations are contained in the agreed Schedules (Categories).” 97 Paragraph 7 on Concepts and Principles of the MOA-AD provides: “Vested property rights upon the entrenchment of the BJE shall be recognized and respected subject to paragraph 9 of the strand on Resources.” 98 Paragraph 7 on Resources of the MOA-AD provides: “The legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, the GRP shall take effective measures or adequate reparation collectively beneficial to the Bangsamoro people, in such quality, quantity and status to be determined mutually by both Parties.” (Emphasis supplied) PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 229 all the natural resources removed from such lands since 1521. In short, the Government must pay compensation to the BJE for all titled private lands, as well as all natural resources taken or extracted, in Mindanao, Sulu and Palawan. If the lands are still State owned – like public forests, military and civil reservations, public school sites, public parks or sites for government buildings – the Government must return the lands to the BJE. The MOA-AD further states, “Whenever restoration is no longer possible, the GRP shall take effective measures or adequate reparation collectively beneficial to the Bangsamoro people, in such quality, quantity and status to be determined mutually by both Parties.” The cost of reparation could bankrupt the Government. The Executive branch never consulted Congress, which exercises exclusively the power of the purse, about this commitment to pay “adequate reparation” to the BJE, a reparation that obviously has a gargantuan cost. Of course, under Philippine law Congress is not bound by this commitment of the Executive branch. Under international law, however, the Philippines is bound by such commitment of the Executive branch.

THERE IS NO DISARMAMENT UNDER THE MOA-AD

Respondents have repeatedly claimed during the oral arguments that the final comprehensive peace agreement will lead to the disarmament of the MILF.99 However, paragraph 8 on Governance of the MOA-AD allows the BJE “to build, develop and maintain its own x x x police and internal security force.” Clearly, the BJE’s internal security force is separate from its police. The obvious intention is to constitute the present MILF armed fighters into the BJE’s internal security force. In effect, there will be no disarmament of the MILF even after the signing of the comprehensive peace agreement. The BJE can deploy its internal security force not only within the “core”100 BJE territory, but also outside of the core BJE 99 TSN, August 29, 2008, p. 704. 100 Paragraph 2(c) on Territory of the MOA-AD provides: “The Parties affirm that the core of the BJE shall constitute the present geographic 230 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I territory, that is, in ancestral lands of the Lumads that are located in Christian provinces, cities and municipalities. Under paragraphs 1 and 3 on Concepts and Principles of the MOA-AD, the Lumads and all their ancestral lands in Mindanao, Sulu and Palawan are made part of the BJE. Thus, the MOA-AD even allows the MILF to station permanently its MILF armed fighters within Christian provinces, cities and municipalities outside of the core BJE territory.

DUTY TO PRESERVE TERRITORIAL INTEGRITY AND NATIONAL SOVEREIGNTY

Under the United Nations Declaration on the Rights of Indigenous Peoples, which is one of the documents referred to in the Terms of Reference of the MOA-AD, 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 like the Philippines. Article 46 of the Declaration states:

ARTICLE 46 1. Nothing in this Declaration may 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 Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. (Emphasis supplied) Under international law, every sovereign and independent State has the inherent right to protect from dismemberment its territorial integrity, political unity and national sovereignty. The duty to protect the territorial integrity, political unity and national sovereignty of the nation in accordance with the Constitution is not the duty alone of the Executive branch. Where the Executive branch is remiss in exercising this solemn area of the ARMM, including the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte that voted for inclusion in the ARMM during the 2001 plebiscite.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CARPIO, CONCURRING OPINION 231 duty in violation of the Constitution, this Court, in the appropriate case as in the present petitions, must step in because every member of this Court has taken a sworn duty to defend and uphold the Constitution.

A FINAL WORD

No one will dispute that the nation urgently needs peace in Mindanao. The entire nation will truly rejoice if peace finally comes to Mindanao. The Executive branch must therefore continue to pursue vigorously a peaceful settlement of the Moro insurgency in Mindanao. No nation can progress and develop successfully while facing an internal armed conflict.101 However, any peace agreement that calls for amendments to the Constitution, – whatever the amendments may be, including the creation of the BJE – must be subject to the constitutional and legal processes of the Philippines. The constitutional power of Congress to propose amendments to the Constitution, and the constitutional power of the people to approve or disapprove such amendments, can never be disregarded. The Executive branch cannot usurp such discretionary sovereign powers of Congress and the people, as the Executive branch did when it committed to amend the Constitution to conform to the MOA-AD. There must also be proper consultations with all affected stakeholders, where the Constitution or existing laws require such consultations. The law requires consultations for a practical purpose – to build consensus and popular support for an initiative, in this case the peace agreement. Consultations assume greater importance if the peace agreement calls for constitutional amendments, which require ratification by the people. A peace agreement negotiated in secret, affecting the people’s rights, lives and destinies, that is suddenly sprung on the people as a fait accompli, will face probable rejection in a plebiscite. 101 Paul Collier calls internal armed conflicts “development in reverse.” Development and Conflict, Centre for the Study of African Economies, Department of Economics, Oxford University, October 1, 2004. 232 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

In short, a peace agreement that amends the Constitution can be lasting only if accepted by the people in accordance with constitutional and legal processes. Accordingly, I vote to GRANT the petitions and declare the MOA-AD UNCONSTITUTIONAL. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J AZCUNA, SEPARATE OPINION 233

SEPARATE OPINION

Azcuna, J.:

I agree with the ponencia but I hold the view that, had the MOA- AD been signed as planned, it would have provided a basis 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 Australia v. France1 or that of Burkina Faso v. Mali,2 is the one applicable, is not solely for this Court 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. There is need to consult the people before risking that kind of outcome. On this point, Martin Dixon and Robert McCorquodale, in their CASES AND MATERIALS ON INTERNATIONAL LAW, observe: B. Unilateral statements Nuclear Test Cases (Australia v. France and New Zealand v. France) Merits ICJ Rep. 1974 253, International Court of Justice Australia and New Zealand brought proceedings against France arising from nuclear tests conducted by France in the South Pacific. Before the Court 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. The court held by nine votes to six that, due to these statements by France, the claim of Australia and New Zealand no longer had any object and so the Court did not have to decide the issues in the case. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect

1 1974 I.C.J. 253. 2 1986 I.C.J. 554. 234 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, not even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made x x x. x x x x NOTES: 1. It is very rare that a Court will find that a unilateral statement will bind a State. In Frontier Dispute Case (Burkina Faso v. Mali) 1986 ICJ Rep 554, a Chamber of the International Court of Justice held that a statement by the President of Mali at a press conference did not create legal obligations on Mali, especially as ‘The Chamber considers that it has a duty to show even greater caution when it is a question of a unilateral declaration not directed to any particular recipient.’ (paragraph 39).3 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 MOA-AD, making 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. As to the rest, I concur.

3 Pages 59–61, emphasis supplied. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 235

SEPARATE OPINION

Tinga, J.:

As a matter of law, the petitions were mooted by the unequivocal decision of the Government of the Philippines, through the President, not to sign the challenged Memorandum of Agreement on Ancestral Domain (MOA-AD). The correct course of action for the Court is to dismiss the petitions. The essential relief sought by the petitioners – a writ of prohibition under Rule 65 – has already materialized with the Philippine government’s voluntary yet unequivocal desistance from signing the MOA-AD, thereby depriving the Court of a live case or controversy to exercise jurisdiction upon. At the same time, I deem it impolitic to simply vote for the dismissal the cases at bar without further discourse in view of their uniqueness in two aspects. At the center is an agreement and yet a party to it was not impleaded before it was forsaken. And 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 capitalize on to stir adverse epiphenomenal consequences. According to news reports, the Moro Islamic Liberation Front (MILF) has adopted the posture that as far as it is concerned, the MOA-AD is already effective, and there may be indeed a tenuous linkage between that stance and the apparent fact that the MOA-AD, though unsigned, bears the initials of members of the Philippine negotiating panel, the MILF negotiating panel and the peace negotiator of the Malaysian government. These concerns warrant an extended discussion on the MOA-AD, even if the present petitions are moot and academic. I.

It is a bulwark principle in constitutional law that an essential requisite for a valid judicial inquiry is the existence of an actual case or controversy. A justiciable controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial 236 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

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.1 The exercise of the power of judicial review depends upon the existence of a case or controversy. Consequently, if a case ceases to be a lively controversy, there is no justification for the exercise of the power, otherwise, the court would be rendering an advisory opinion should it do so.2 We held in Gancho-on v. Secretary of Labor:3 It is a rule of universal application, almost, that courts of justice constituted to pass upon substantial rights will not consider questions in which no actual interests are involved; they decline jurisdiction of moot cases. And 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. There 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 v. NEDA,4 the President officially desisted from pursuing a national government project which was challenged before this Court. The Court was impelled to take mandatory judicial notice5 of the President’s act, and 1 I. Cruz. CONSTITUTIONAL LAW (2007 ed.), at 23. See also R. MARTIN, PHILIPPINE CONSTITUTIONAL LAW (1954 ed.), at 56–57.

2 V. Mendoza, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTION: CASES AND MATERIALS (2004 ed.), at 107. 3 337 Phil. 654, 658 (1997). 4 G.R.No. 178830, July 14, 2008. Available at . 5 Under Section 1, Rule 129 of the Rules of Court. “Judicial Notice, when mandatory. – A court shall take judicial notice, without introduction of evidence, of the existence and territorial extent 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 the legislative, executive and PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 237

consequently declare the pending petitions as moot and academic. The Court, through Justice Reyes, held: Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the judiciary’s 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 exercise of judicial discretion militates against resolving the academic issues, as petitioners want this Court to do. This is especially true where, as will be further discussed, the legal issues raised cannot be resolved without previously establishing the factual basis or antecedents. Judicial power presupposes actual controversies, the very antithesis of mootness. In the absence of actual justiciable controversies or disputes, the Court generally opts to refrain from deciding moot issues. Where there is no more live subject of controversy, the Court ceases to have a reason to render any ruling or make any pronouncement. Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado.6 The live controversy relied upon by the petitions was the looming accession by the Philippine government to the MOA- AD, through a formal signing ceremony that was to be held at Kuala Lumpur, Malaysia, on August 5, 2008. This ceremony was prevented when the Court issued a Temporary Restraining Order on August 4, 2008, yet even after the TRO, it appeared that the Government then was still inclined to sign the MOA- AD after the legal obstacles had been cleared. However, on September 1, 2008, the Government through the Office of the Solicitor General, filed a Compliance, manifesting the pronouncement of Executive Secretary Ermita that “[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA.” This declared intent was repeated in a

judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.” 6 Supra note 4. 238 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Manifestation dated September 4, 2008, and verbally reiterated during the oral arguments before this Court. In addition, the President herself publicly declared, as recently as on October 2, 2008, that regardless of the ruling of the Supreme Court on these petitions, her government will not sign the MOA-AD, “in the light of the recent violent incidents committed by MILF lawless groups.”7 Clearly following Suplico the Court has no choice but to take mandatory judicial notice of the fact that the Government will not sign or accede to the MOA-AD and on this basis dismiss to the petitions herein. Thus, the Court is left with petitions that seek to enjoin the Government from performing an act which the latter had already avowed not to do. There is no longer a live case or controversy over which this Court has jurisdiction. Whatever live case there may have been at the time the petitions were filed have since become extinct. Admittedly, there are exceptions to the moot and academic principle. The fact that these exceptions 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 Reports or the Supreme Court Reports Annotated. Still, the moot and academic principle remains a highly useful and often applied tool for the Court to weed out cases barren of any current dispute. Indeed, even with those exceptions in place, there is no mandatory rule that would compel this Court to exercise jurisdiction over cases which have become academic. For the exceptions to apply, it would be necessary, at bare minimum, to exhibit some practical utilitarian value in granting the writs of prohibition sought. Otherwise, the words of the Court would be an empty exercise of rhetoric that may please some ears, but would not have any meaningful legal value.

7 “MOA-AD will not be signed by gov’t regardless of what SC decides on the issue – PGMA”. From “The Official Website of the Government of the Philippines” dated October 3, 2008. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 239

A usual exception to the moot and academic principle is where the case is capable of repetition yet evading review. A recent example where the Court applied that exception was in Sanlakas v. Executive Secretary,8 which involved the power of the President to declare a state of rebellion. Therein, the Court decided to exercise jurisdiction “[t]o prevent similar questions from re-emerging.”9 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. Contrast 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. To repeat the challenged act herein, there would have to be a prolonged and delicate negotiation process between the Government and the MILF, both sides being influenced by a myriad of unknown and inconstant factors such as the current headlines of the day. Considering the diplomatic niceties involved in the adoption of the MOA-AD, it is well-worth considering the following discussion on the complexity in arriving at such an agreement: The making of an international agreement is not a simple single act. It is rather a complex process, requiring performance of a variety of different functions or tasks by the officials of a participating state. Among the functions which must be distinguished for even minimal clarity are the following: (1) the formulation of rational policies to guide the conduct of negotiations with other states; (2) the conduct of negotiations with the representatives of other states; (3) the approval of an agreement for internal application within the state, when such internal application is contemplated; (4) the approval of an agreement for the external commitment of the state; (5) the final utterance of the agreement as the external commitment of the state to other states.10 8 G.R. No. 159085, 159103, and 159196, February 3, 2004, 421 SCRA 656. 9 Id. at 665. 10 W.M. Reisman, M. Arsanjani, S. Wiessner & G. Westerman, INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE (2004 ed.), at 1280. 240 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Assuming that the act can be repeated at all, it cannot be repeated with any ease, there being too many cooks stirring the broth. And further assuming that the two sides are able to negotiate a new MOA-AD, it is highly improbable that it would contain exactly the same provisions or legal framework as the discarded MOA-AD. II.

Even 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 MOA-AD on my part. As intimated earlier, the MILF has adopted the public position that as far as it is concerned, the MOA-AD has already been signed and is binding on the Government. To quote from one news report: “The MILF leadership, which is the Central Committee of the MILF, has an official position. that the memorandum of agreement on the Bangsamoro Ancestral Domain has been signed,” said Ghadzali Jaafar, MILF vice chairman for political affairs. x x x x Jaafar said the MILF considers the MOA binding because its draft agreement was “initialed” last July 27 in Kuala Lumpur by Rodolfo Garcia, government chief negotiator; Mohagher Iqbal, MILF chief negotiator; Hermogenes Esperon, presidential adviser on the peace process, and Datuk Othman bin Abdulrazak, chief peace facilitator for the Malaysian government. “Our position is that after initialing, both parties initialed the MOA, that is a signing,” Jaafar said. Jaafar said the scheduled signing yesterday in Kuala 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.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 241

“So it’s a done deal as far as the MILF is concerned,” he said. Jaafar said the MILF and the government set a ceremonial signing of the MOA “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 Republic of the Philippines.” He said the MILF expects the government to abide by the MOA “because this agreement is binding on both parties.”11 It appears that the persons who initialed the MOA-AD were Philippine Presidential Peace Adviser Hermogenes Esperon, Jr., Philippine government peace negotiator Rodolfo Garcia, MILF chief negotiator Mohagher Iqbal, and Datuk Othman bin Abdulrazak, chief peace facilitator of the Malaysian government.12 The MILF is not a party to these petitions, and thus its position that the MOA-AD was in fact already signed through the initials affixed by representatives of the Philippine and Malaysian governments and the MILF has not been formally presented for the Court for adjudication. In an earlier submission to the Court, I discussed the position of the MILF from the following perspective: There is the danger that if the petitions were dismissed for mootness without additional comment, it will be advocated by persons so interested as to make the argument that the intrinsic validity of the MOA-AD provisions has been tacitly affirmed by the Court. Moreover, the unqualified dismissal of the petitions for mootness will not preclude the MILF from presenting the claim that the MOA-AD has indeed already been signed and is therefore binding on the Philippine government. 11 V. Reyes, “MILF: Pact a done deal after initialing,” Malaya (August 6, 2008) at (last visited October 11, 2008). 12 “Govt: Initials do not make draft MOA on ancestral domain a done deal.” GMANews.Tv, at (last visited October 11, 2008). 242 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

These concerns would especially be critical if either argument is later presented before an international tribunal, that would look to the present ruling of this Court as the main authority on the status of the MOA-AD under Philippine internal law. The use of municipal law rules for international judicial and arbitral procedure has been more common and more specific than any other type of application.13 The International Court of Justice has accepted res judicata as applicable to international litigation.14 The following observations by leading commentators on international law should give pause for thought: 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. Judicial decisions are seen as trustworthy evidence of what the law really is on a given subject; 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.15 (Words in parenthesis and emphasis supplied) Thus, 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 taken as an indicative endorsement of the validity of the MOA under Philippine law. That misimpression should be rectified for purposes that transcend the ordinary adjudicative exercise, I stressed. 13 B. Weston, R. Falk, H. Charlesworth & A. Strauss, INTERNATIONAL LAW AND WORLD ORDER: A PROBLEM-ORIENTED COURSEBOOK (4th ed), at 144; words in parenthesis supplied. 14 Id., citing Effect of Awards Made by the United Nations Administrative Tribunal, 1956 ICJ 53 (Advisory Opinion). 15 Id. at 151. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 243

Firstly, is the MILF correct when it asserted that the MOA- AD may already be considered as binding on the Philippine government? Reference to the initialed but unsigned copy of the MOA- AD is useful.16 There are three distinct initials that appear at the bottom of each and every page of the 11-page MOA-AD: that of Garcia and Esperon for the Philippine negotiating panel, and that of Iqbal for the MILF. Page 11, the signature page, appears as follows: IN WITNESS WHEREOF, the undersigned being the representatives of the Parties hereby affix their signatures. Done this 5th day of August, 2008 in Kuala Lumpur, Malaysia.

FOR THE GRP FOR THE MILF (unsigned) (unsigned) RODOLFO C. GARCIA MOHAGHER IQBAL Chairman Chairman GRP Peace Negotiating Panel MILF Peace Negotiating Panel

WITNESSED BY:

(unsigned) DATUK OTHMAN BIN ABD RAZAK Special Adviser to the Prime Minister

ENDORSED BY:

(unsigned) AMBASSADOR SAYED ELMASRY Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines

16 See Annex “B” to Petition in G.R. No. 183893. 244 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

IN THE PRESENCE OF: (unsigned) (unsigned) DR. ALBERTO G. ROMULO DATO’ SERI UTAMA DR. RAIS Secretary of Foreign Affairs BIN YATIM Republic of the Philippines Minister of Foreign Affairs Malaysia Initialed by: Sec. Rodolfo Garcia (initialed) Mohagher Iqbal (initialed) Sec. Hermogenes Esperon (initialed) Witnessed by: Datuk Othman bin Abd Razak (initialed) Dated 27 July 2008

Two points are evident from the above-quoted portion of the MOA-AD. First, the affixation of signatures to the MOA-AD was a distinct procedure from the affixation of initials to the pages of the document. Initialization was accomplished on July 27, 2008, while signature was to have been performed on August 5, 2008. The initialing was witnessed by only one person, Razak, while the signing of the MOA-AD was to have been witnessed by the respective heads of the Foreign Affairs departments of the Philippines and Malaysia. Clearly, signing and initialing was not intended to be one and the same. Second, it is unequivocal from the document that the MOA- AD was to take effect upon the affixation of signatures on August 5, 2008 in Kuala Lumpur, Malaysia, and not through the preliminary initialing of the document on July 27, 2008. Under our domestic law, consent of the parties is an indispensable element to any valid contract or agreement.17 The three stages of a contract include its negotiation or preparation, its birth or perfection, and its fulfillment or consummation. The perfection of the contract takes place only upon the concurrence of its three essential requisites – consent of the contracting parties, object certain which is the subject matter of the contract, and cause of the obligation which is

17 See CIVIL CODE, Article 1318. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 245 established.18 Until 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.19 Consent is indubitably manifested through the signature of the parties. That the Philippine government has not yet consented to be bound by the MOA-AD is indubitable. The parties had agreed to a formal signature ceremony in the presence of the Secretary of Foreign Affairs, the alter ego of the President of the Philippines. The ceremony never took place. The MOA-AD itself expresses that consent was to manifested by the affixation of signatures, not the affixation of initials. In addition, the subsequent announcement by the President that the Philippine Government will not sign the MOA-AD further establishes the absence of consent on the part of the Philippines to the MOA-AD. Under domestic law, the MOA-AD cannot receive recognition as a legally binding agreement due to the absence of the indispensable requisite of consent to be bound. Nonetheless, it is unlikely that the MILF or any other interested party will seek enforcement of the MOA with the Philippine courts. A more probable recourse on their part is to seek enforcement of the MOA before an international tribunal. Could the Philippines be considered as being bound by the MOA under international law? Preliminarily, it bears attention that Justice Morales has exhaustively and correctly debunked the proposition that the MOA-AD 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 Bangsamoro people all the concessions stated in the MOA-AD. It would thus be improper to analyze whether the MOA-AD had created binding obligations through the lens of international law or through an instrument as the Vienna Convention on the Law of Treaties, as it should be domestic law alone that governs the interpretation of the MOA-AD.

18 J. Vitug, III CIVIL LAW: OBLIGATIONS AND CONTRACTS (2003 ed.), at 108–109. 19 Id. at 109. 246 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Nonetheless, even assuming that international law principles can be utilized to examine that question, it is clear that the MILF’s claim that the MOA-AD is already binding on the Philippine government will not prevail. The successful outcome of negotiation of international agreements is the adoption and authentication of the agreed text.20 Once a written text is agreed upon and adopted, it is either signed, or initialed and subsequently signed by the diplomats and then submitted to the respective national authorities for ratification.21 Once a treaty has been adopted, the manner in which a state consents to be bound to it is usually indicated in the treaty itself.22 Signature only expresses consent to be bound when it constitutes the final stage of a treaty- making process.23 Reisman, Arsanjani, Wiessner & Westerman explain the procedure in the formation of international agreements, including the distinction between initialing and signing: Treaties are negotiated by agents of states involved. Usually, once the agents agree on a text, the authenticity of this agreed-upon mutual commitment is confirmed by the agents placing their initials on the draft agreement (“initialing”). Their 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. Once this approval is secured, the heads of state express 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.24 20 J. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (6th ed.), at 582.

21 A. Cassese, INTERNATIONAL LAW (2nd ed.), at 172.

22 S. Murphy, PRINCIPLES OF INTERNATIONAL LAW (2006 ed.), at 68.

23 M. Fitzmaurice, “THE ANATOMY OF A TREATY,” IN INTERNATIONAL LAW (OXFORD), ed. by M.Evans. 24 Supra note 10, at 1280–1281. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 247

This 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 text of the agreement. The initialing of the agreement reflects only the affirmation by the negotiating agents that the text 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. Article 12(2)(a) of the Vienna Convention on the Law of Treaties does provide that “the initialing of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed.” At bar, it is evident that there had been no agreement that the mere initialing of the MOA-AD would constitute the signing of the agreement. In fact, it was explicitly provided in the MOA-AD that the signing of the agreement would take 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. The fact that the MOA-AD reflects an initialing process which is independent of the affixation of signatures, which was to be accomplished on a specific date which was days after the MOA- AD was initialed, plainly indicates that the parties did not intend to legally bind the parties to the MOA through initialing. There is no cause under international law to assume that the MOA- AD, because it had been initialed, was already signed by the Philippine Government or the MILF even. III.

The position of the MILF that the MOA-AD already creates binding obligations imposable on the Government cannot ultimately be sustained, even assuming that the initialing of the document had such binding effect. That position of the MILF supposes that the provisions of the MOA-AD are intrinsically valid under Philippine law. It takes no inquiry at great depth to be enlightened that the MOA-AD is incongruous with the Philippine Constitution. 248 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

The Constitution establishes a framework for the administration of government through political subdivisions. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays.25 In addition, there shall be autonomous regions in Muslim Mindanao and the Cordilleras, in accordance with respective organic acts enacted by Congress.26 The Constitution has adopted decentralization as a governing principle with respect to local government rule, and this especially holds true with respect to the autonomous regions. As we explained in Disomangcop v. DPWH:27 Regional autonomy is the degree of self-determination exercised by the local government unit vis-à-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 complex 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 community’s internal decision-making 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. However, 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. Regional 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.

25 CONSTITUTION, Article X, Section [1].

26 CONSTITUTION, Section 15, in relation with Article X, Section 1. 27 G.R. No. 149848, November 25, 2004, 444 SCRA 203. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 249

The 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, exercise their rights, and be in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise 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. x x x28 At the same time, the creation of autonomous regions does not signify the establishment of a sovereignty distinct from that of the Republic, as it can be installed only “within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.”29 28 Id. at 230–231.

29 Id. at 229; citing CONSTITUTION, Article X, Section 15. See also III RECORD 235, August 12, 1986: MR. NOLLEDO. As I already stated, these autonomous regions are established within the framework of our national sovereignty. And in answer to the question of Commissioner Bengzon 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, “No, because of the expression ‘within the framework of national sovereignty.’” We are not granting sovereignty to the autonomous region. That is why the term “power of autonomous region” was appropriately used because as an accepted principle in constitutional law, sovereignty is indivisible. That is why we also maintain the provision in both Committee Report Nos. 21 and 25 that the President of the Philippines has supervisory power over autonomous regions to see to it that laws are faithfully executed. So, I find no inconsistency between the powers to be granted to autonomous regions and the sovereignty of the Republic of the Philippines. 250 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

At present, the constitutional mandate of local autonomy for Muslim Mindanao has already been implemented. Republic Act No. 6734 (RA No. 6734), entitled “An Act Providing for An Organic Act for the Autonomous Region in Muslim Mindanao,” was enacted and signed into law on August 1, 1989. The law contains elaborate provisions on the powers of the Regional Government and the areas of jurisdiction which are reserved for the National Government. The year 2001 saw the passage of Republic Act No. 9054, entitled “An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended.” Republic Act No. 9054 contains detailed provisions on the powers of the Regional Government and the retained areas of governance of the National Government. Nothing prevents Congress from amending or reenacting an Organic Act providing for an autonomous region for Muslim Mindanao, even one that may seek to accommodate the terms of the MOA-AD. Nonetheless, the paramount requirement remains that any organic act providing for autonomy in Mindanao must be in alignment with the Constitution and its parameters for regional autonomy. The following provisions from Article X of the Constitution spell out the scope and limitations for the autonomous regions in Mindanao and the Cordilleras:

SEC. 18. The Congress 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. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 251

The 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. 20. Within its territorial and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

SEC. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government. The autonomous regional government to be established through the organic act consists of the executive and legislative branches of government, both of which are elective. With respect to the judicial branch, the Constitution authorizes the organic acts to provide for special courts with jurisdiction limited over personal, family and property law. The scope of legislative powers to be exercised by the autonomous legislative assembly is limited to the express grants under Section 20, Article X. The 252 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I national government retains responsibility over the defense and security of the autonomous regions. In addition, under Section 17, Article X, “[a]ll powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.” The MOA-AD acknowledges that the Bangsamoro Juridical Entity (BJE) shall have authority and jurisdiction over the territory defined in the agreement as the ancestral domain of the Bangsamoro people. For the BJE to gain legal recognition under the Constitution, it must be identifiable as one of the recognized political subdivisions ordained in the Constitution. That is not the case. In fact, it is apparent that the BJE would have far superior powers than any of the political subdivisions under the Constitution, including the autonomous regional government for Muslim Mindanao. The powers of government extended to the BJE are well in excess than that which the Constitution allocates to the autonomous regional government for Muslim Mindanao. For example, it was agreed upon in the MOA that: [T]he BJE shall be empowered to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society x x x.30 Under the Constitution, the extent through which the autonomous regional government could establish a judicial system was confined to the extent of courts with jurisdiction over personal, property and family law.31 Obviously, the MOA- AD intends to empower the BJE to create a broader-based judicial system with jurisdiction over matters such as criminal law or even political law. This provision also derogates from the authority of the constitutional commissions, most explicitly the Civil Service Commission (CSC) and the Commission on 30 MOA-AD, Governance, Paragraph 8.

31 See CONSTITUTION, Article X, Section 18. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 253

Elections (COMELEC). The CSC administers the civil service, which embraces all branches, subdivisions, instrumentalities, and agencies of the Government.32 Yet the MOA-AD would empower the BJE to build, develop and maintain its own civil service. The BJE is likewise authorized to establish its own electoral institutions. Yet under the Constitution, it is the COMELEC which has the exclusive power to enforce and administer election laws.33 Much of the MOA-AD centers on agreements relating to the exploitation of the economic resources over the proposed Bangsamoro homeland. The BJE is vested with jurisdiction, power and authority over land use, development, utilization, disposition and exploitation of natural resources within that territory. To that end, the BJE is empowered “to revoke or grant forest concessions, timber license, contracts or agreements in the utilization and exploitation of natural resources.”34 One provision of the MOA-AD makes it certain that it is the BJE which has exclusive jurisdiction in the exploitation of natural resources, particularly those utilized in the production of energy: Jurisdiction and control over, and the right of exploring for, exploiting, 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 Bangsamoro juridical entity as the party having control within its territorial jurisdiction, provided that in times of national emergency, when public interest so requires, the Central Government may, during the emergency, for a fixed period and under reasonable terms as may be agreed by both Parties, temporarily assume or direct the operations of such strategic resources.35 These powers, which are unavailable to any of the political subdivisions, are reserved under the Constitution to the Republic as the owner of all lands of the public domain, waters,

32 See CONSTITUTION, Article IX-B, Section 2(1) in relation to Section 1(1).

33 CONSTITUTION, Article IX-C, Section 2(1). 34 MOA-AD, Resources, paragraph 2(d). 35 MOA-AD, Resources, paragraph 5. 254 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources.36 As a corollary to the BJE’s power over the exploitation of natural resources, the MOA-AD accords it freedom “to enter into any economic cooperation and trade relations with foreign countries,” including “the option to establish and open Bangsamoro trade mission in foreign countries with which it has economic cooperation agreements.”37 Such a “freedom” is contrary to the long-established principle that “[i]n our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations.”38 The MOA-AD even assures that “the Central Government shall take necessary steps to ensure the Bangsamoro juridical entity’s participation in international meetings and events, e.g. ASEAN meetings and other specialized agencies of the United Nations.”39 These terms effectively denote a concession on the part of the Republic of the Philippines of a segregate legal personality to the BJE before international fora. It bears reminder that regional autonomy under Article X of the Constitution remains “within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.” These provisions 36 See Article XII, Section 2 which also provides “x x x The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. x x x” 37 MOA-AD, Resources, paragraph 4. 38 Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632; citing I. Cortes, THE PHILIPPINE PRESIDENCY: A STUDY OF EXECUTIVE POWER (1966), p. 187. “[T]he President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.” Id. 39 Id. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J TINGA, SEPARATE OPINION 255 of the MOA-AD are extra-constitutional and diminish national sovereignty as they allocate to the BJE powers and prerogatives reserved under the Constitution to the State. Clearly, the framework of regional government that premises the MOA-AD is unworkable within the context of the Constitution. IV.

A member of the GRP Peace Panel, Atty. Sedfrey Candelaria, had admitted to the Court during the oral arguments held on August 29, 2008 that the implementation of the MOA-AD would require amendments to the Constitution. That admission effectively concedes that the MOA-AD is inconsistent with the Constitution, and thus cannot acquire valid status under Philippine law. 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 Constitution. There 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 undertaken by an agent of government must be intensely scrutinized. Any legally binding commitment to amend the Constitution can only come from the political institutions and the sovereign people who are empowered by the charter to amend the Constitution. The President nor any other member or office of the executive branch does not have the power to effect changes to the Constitution even if he wanted to in the paramount interest of the country and of the people. Any commitment to any entity on the part of the President or his political appointees to amend the Constitution is inherently ultra vires, because the Executive Branch does not have the innate power to effectuate such changes on its own. Neither does the President have the power to bind to positive action those whom the Constitution entrusts the power to amend the charter, namely; the Congress, the delegates to a constitutional convention, and the electorate. Constitutional order cannot be sacrificed for expediency, even if in the name of peace in Mindanao. Assuming that the 256 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I executive branch has in good faith become intractably convinced that it is necessary to amend the Constitution in order to obtain lasting peace in Mindanao, the consequent step should not be to make promises it has no power alone to keep, hoping against hope that the Congress and the voters would ultimately redeem the promises. Since constitutional amendments are involved, the ability of the executive branch to undertake any legally binding commitment to amend the Constitution can only be recognized, if at all, with the prior appropriate authorization of Congress, acting with the specified majorities provided in Section 1(1), Article XVII of the Constitution.40 Under 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 authorized to propose amendments to the Constitution, subject to final ratification by the people through a plebiscite. The Government would have been spared of the embarrassment and outcry had it acted with more prudence by first securing the necessary political mandate to undertake charter change for the benefit of Mindanao, instead of acting brashly and rashly by acceding at the outset to the undertaking without consulting the Congress or the people. In the end, the issuance of the TRO by this Court proved highly providential, as even the Government wound up seeing the proverbial light before it was too late. With the foregoing qualifications, I vote to dismiss the petitions and register my dissent from the result reached by the majority.

40 “Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its members x x x.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CHICO-NAZARIO, SEPARATE OPINION 257

SEPARATE OPINION

Chico-Nazario, J.:

The piece of writing being assailed in these consolidated Petitions is a peace negotiation document, namely the Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001 (MOA). The Solicitor General explained that this document, prepared by the joint efforts of the Government of the Republic of the Philippines (GRP) 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 Bangsamoro homeland.1 Subsequently, the Solicitor General 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 Executive Department’s statement that it would no longer sign the questioned peace negotiation document.2 Nonetheless, several parties to the case, as well as other sectors, continue to push for what they call a “complete determination” of the constitutional issues raised in the present Petitions. I believe that in light of the pronouncement of the Executive Department to already abandon the MOA, the issue of its constitutionality has obviously become moot. The rule is settled that no question 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 requisites for judicial inquiry, namely: that the question must be raised by the proper party; that there must be an actual case or controversy; that the question must be raised at the earliest possible opportunity; and, that the decision on the constitutional or legal question must be necessary to the determination of the case itself. But the most important are the first two requisites.3 1 Respondent’s Manifestation and Motion, August 19, 2008. 2 Id. 3 Joya v. Presidential Commission on Good Government, G.R. No. 96541, August 24, 1993, 225 SCRA 568, 575. 258 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

For a court to exercise 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 resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. A case becomes moot and academic when its purpose has become stale.4 An action is considered “moot” when it no longer presents a justiciable controversy because the issues involved have become academic or dead or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties. Simply stated, there is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events.5 Such is the case here. The MOA has not even been signed, and will never be. Its provisions will not at all come into effect. The MOA will forever remain a draft that has never been finalized. 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. The instant Petitions, therefore, and all other oppositions to the MOA, have no more leg to stand on. They no longer present an actual case or a justiciable controversy for resolution by this Court. An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite legal claims, which can be resolved on the basis of existing law and jurisprudence. A 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. A justiciable controversy admits of specific relief through a decree that is conclusive in

4 Id. 5 Santiago v. Court of Appeals, G.R. No. 121908, January 26, 1998, 285 SCRA 16, 22. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CHICO-NAZARIO, SEPARATE OPINION 259 character, whereas an opinion only advises what the law would be upon a hypothetical state of facts.6 For the Court to still rule upon the supposed unconstitutionality of the MOA will merely be an academic exercise. It would, in effect, only be delivering an opinion or advice on what are now hypothetical or abstract violations of constitutional rights. In Abbas v. Commission on Elections,7 the 1976 Tripoli Agreement and Republic Act No. 6734 (the Organic Act for the Autonomous Region in Muslim Mindanao) were challenged for purported violations of the provisions of the Constitution on freedom of religion. The Court held therein that it should not inquire into the constitutionality of a peace agreement which was already consummated (the 1976 Tripoli Agreement) and an Organic Act which was already passed into law (RA No. 6734) just because of potential conflicts with the Constitution. Then, with more reason should this Court desist from ruling on the constitutionality of the MOA which is unsigned, and now entirely abandoned, and as such, cannot even have any potential conflict with the Constitution. The Court 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. The power of judicial review of this Court is for settling real and existent dispute, it is not for allaying fears or addressing public clamor. In acting on supposed abuses by other branches of government, the Court must be careful that it is not committing abuse itself by ignoring the fundamental principles of constitutional law. The Executive Department has already manifested to this Court, through the Solicitor General, that it will not sign the MOA in its present form or in any other form. It has declared the same intent to the public. For this Court 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 6 Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 426 (1998). 7 G.R. Nos. 89651 and 89965, November 10, 1989, 179 SCRA 287. 260 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I given by the Executive Department that it will not enter into any other form of the MOA in the future. The Court cannot doubt the sincerity of the Executive Department on this matter. The Court must accord a co-equal branch of the government nothing less than trust and the presumption of good faith. Moreover, I deem it beyond the power of this Court to enjoin the Executive Department from entering into agreements similar to the MOA in the future, as what petitioners and other opponents of the MOA pray for. Such prayer once again requires this Court to make a definitive ruling on what are mere hypothetical facts. A decree granting the same, without the Court having seen or considered the actual agreement and its terms, would not only be premature, but also too general to make at this point. It will perilously tie the hands of the Executive Department and limit its options in negotiating peace for Mindanao. Upon the Executive Department 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 Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means. Peace negotiations are never simple. If neither party in such negotiations thinks outside the box, all they would arrive at is a constant impasse. Thus, a counsel for one of the intervenors who assert the unconstitutionality of the MOA8 had no choice but to agree as follows: ASSOCIATE JUSTICE QUISUMBING: Well, we realize the constitutional constraints of sovereignty, integrity and the like, but isn’t there a time that surely will come and the life of our people when they have to transcend even these limitations?

8 Dean Pacifico Agabin is the counsel for Intervenor Manuel A. Roxas III. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CHICO-NAZARIO, SEPARATE OPINION 261

DEAN AGABIN: Yes, we have seen it happen in several instances, Your Honor. x x x x ASSOCIATE JUSTICE QUISUMBING: And in pursuit of that purpose, the Supreme Court cannot look beyond the horizon and look for more satisfying result? DEAN AGABIN: Well, if you mean by looking beyond the horizon, it would mean a violation of the provisions of the Constitution, then it should not be, Your Honor. ASSOCIATE JUSTICE QUISUMBING: In some part, we have gone to Malaysia. We have gone to the OIC, and we have even gone to Libya. DEAN AGABIN: Yes, Your Honor. But in all these, we have always insisted on preserving the territorial integrity of the country. ASSOCIATE JUSTICE QUISUMBING: And this dicta or [dogma] is unassailable forever. There cannot be an exception. DEAN AGABIN: It is unassailable under the present Constitution, Your Honor. ASSOCIATE JUSTICE QUISUMBING: But, at least, you can also agree that the Constitution ought to be changed in order for a country to fulfill its internal obligation as a matter of necessity. DEAN AGABIN: Yes, if the people so will it, your Honor. ASSOCIATE JUSTICE QUISUMBING: You remember how the emperor of Japan lost his divinity? They just changed their Constitution, isn’t it? DEAN AGABIN: Yes, it was enforced upon him by Mr. McArthur, and they have no choice. ASSOCIATE JUSTICE QUISUMBING: Isn’t that a very good example of thinking outside the box? That one day even those who are underground may have to think. But frankly now Dean, before I end, may I ask, is it possible to meld or modify our Constitutional Order in order to have some room for the newly developing international notions on Associative Governance Regulation Movement and Human Rights? 262 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

DEAN AGABIN: Yes. It is possible, Your Honor, with the consent of the people. ASSOCIATE JUSTICE QUISUMBING: And, therefore, we vote it to a referendum or any consultation beforehand? DEAN AGABIN: If there is such a proposal for or amendment or revision of the Constitution, yes, Your Honor. ASSOCIATE JUSTICE QUISUMBING: So, either initiative or CHA- CHA or CON-AS? DEAN AGABIN: Yes, Your Honor.9 It must be noted that the Constitution has been in force for three decades now, yet, peace in Mindanao still remained to be elusive under its present terms. There is the possibility that the solution to the peace problem in the Southern Philippines lies beyond the present Constitution. Exploring this possibility and considering the necessary amendment of the Constitution are not per se unconstitutional. The Constitution itself implicitly allows for its own amendment by describing, under Article XVII, the means and requirements therefor. In Tan v. Macapagal,10 where petitioners claim that the Constitutional Convention was without power to consider, discuss, or adopt proposals which seek to revise the Constitution through the adoption of a form of government other than the form outlined in the then governing Constitution, the Court ruled that: [A]s long as any proposed amendment is still unacted on by [the Convention], there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the Courts are devoid of jurisdiction. x x x At this point, there is far from a concrete proposed amendment to the Constitution which the Court can take cognizance of, much less render a pronouncement upon.

9 TSN, pp. 603–611. 10 150 Phil. 778, 785 (1972). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J CHICO-NAZARIO, SEPARATE OPINION 263

At most, the Court can only exhort the Executive Department to keep 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. Transparency 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. The nature and extent 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. As a final note, I find it necessary to stress that the Court 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 Judiciary to tell the Executive Department exactly what and what not, how and how not, to negotiate for peace with insurgents. Given this kind of situation where war and peace hang in the balance, where people’s lives are at stake, and the Executive Department, under its residual powers, is tasked to make political decisions in order to find solutions to the insurgency problem, the Court should respect the political nature of the issues at bar and exercise judicial restraint until an actual controversy is brought before it. In view of the foregoing, I vote for the GRANT of the Motion to Dismiss filed by the Solicitor General and, accordingly, for the DISMISSAL of the Petitions at bar for being MOOT and ACADEMIC. 264 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

DISSENTING OPINION

Velasco, Jr., J.:

It is a well-settled canon of adjudication that an issue assailing the constitutionality of a government act should be avoided whenever possible.1 Put a bit differently, courts will not touch the issue of constitutionality save when the decision upon the constitutional question is absolutely necessary to the final determination of the case, i.e., the constitutionality issue must be the very lis mota of the controversy.2 It is along the line set out above that I express my dissent and vote to dismiss the consolidated petitions and petitions-in-intervention principally seeking to nullify the Memorandum of Agreement on Ancestral Domain (MOA-AD) proposed to be entered into by and between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF).

NON-JOINDER OF MILF: FATAL

The Rules of Court requires all actions to be brought by or against the real party interest. The requirement becomes all the more necessary with respect to indispensable parties. For: 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. All of them must be included in a suit for an action to prosper or for a final determination to be had.3 As it were, the MILF was not impleaded in this case except in G.R. No. 183962. But it would appear that MILF, doubtless a real party in interest in this proceedings, was not served a copy of and asked to comment on the petition in G.R. No. 183962. Significantly, when queried during the oral arguments on the non-inclusion of the MILF, the petitioners feebly explained that first, they could not implead the MILF because they did not 1 Angara v. Electoral Commission, 63 Phil. 139 (1936). 2 People v. Vera, 65 Phil. 50 (1937). 3 DBM v. Kolonwel Trading, G.R. Nos. 175608, 175616, June 8, 2007. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J VELASCO, JR., DISSENTING OPINION 265 know where it could be served with summons; and second, they feared that impleading the MILF would be futile as the group does not acknowledge the Court’s jurisdiction over it. The importance of joining the MILF in this case cannot be over-emphasized. 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. Here, the unimpleaded party is a party to the proposed MOA-AD no less and the prospective agreement sought to be annulled involves ONLY two parties – the impleaded respondent GRP and the MILF. The obvious result is that the Court 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. The reason is simple. The Court cannot nullify a prospective agreement which will affect and legally bind one party without making said decision binding on the other contracting party. Such exercise is not a valid, or at least an effective, exercise 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.4 Such consequent legal aberration would be the natural result of the non-joinder of MILF. A court should always refrain from rendering a decision that will bring about absurdities or will infringe Section 1, Article 8 of the Constitution which circumscribes the exercise of judicial power.

PREMATURITY AND MOOTNESS

The MOA-AD is but a proposal on defined consensus points. The agreement has remained and will remain a mere proposal as the GRP has put off its signing permanently.5 The parties to the MOA do not have, in short, the equivalent of, or what passes as, a perfected and enforceable contract. As things stand, the line dividing the negotiation stage and the execution stage 4 Valenzuela v. Court of Appeals, 363 SCRA 779; Metropolitan Bank and Trust Co., v. Alejo, 364 SCRA 812 (2001). 5 Per statement made by Solicitor General Agnes Devanadera during the Oral Arguments on August 28, 2008. 266 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I which would have otherwise conferred the character of obligatoriness on the agreement is yet to be crossed. In a very real sense, the MOA-AD is not a document, as the term is juridically understood, but literally a piece of paper which the parties cannot look up to as an independent source of obligation, the binding prestation to do or give and the corollary right to exact compliance. Yet, the petitioners would have the Court nullify and strike down as unconstitutional what, for all intents and purposes, is a non-existent agreement. Like a bill after it passes third reading or even awaiting the approval signature of the President, the unsigned draft MOA-AD cannot plausibly be the subject of judicial review, the exercise of which presupposes that there is before the court an actual case or, in fine, a justiciable controversy ripe for adjudication. A 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.6 And 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. As aptly observed in Tan v. Macapagal,7 for a case to be considered ripe for adjudication, it is a prerequisite that something had been accomplished by either branch of government before a court may step in. In the concrete, the Court could have entered the picture if the MOA- AD were signed. For then, and only then, can we say there is a consummated executive act to speak of. As opposed to justiciable controversy, academic issues or abstract or feigned problems only call for advices on what the law would be upon a hypothetical state of facts.8 Were the Court to continue entertain and resolve on the merits these consolidated petitions, the most that it can legally do is to render 6 Guingona v. Court of Appeals, G.R. No. 125532, July 10, 1998, citing cases.

7 43 SCRA 77, cited in De Leon, PHILIPPINE CONSTITUTIONAL LAW, Vol. II, 2004 ed., p. 434. 8 Guingona v. Court of Appeals, G.R. No. 125532. July 10, 1998, citing Cruz, PHILIPPINE POLITICAL LAW, 1955 ed., pp. 241–42; John Hay People’s Alternative Coalition v. Lim, G.R. No. 119775, October 24, 2003. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J VELASCO, JR., DISSENTING OPINION 267 an advisory opinion,9 veritably binding no one,10 but virtually breaching the rule against advisory opinion set out, if not implied in Section 1, Article VIII charging “courts of justice [the duty] to settle actual controversies 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 Court are moot and academic questions. An 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.11 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.12 To be sure, the mootness of a case would not, in all instances, prevent the Court from rendering a decision thereon.13 So it was that in a host of cases, we proceeded to render a decision on an issue otherwise moot and academic. Dela Camara v. Enage,14 Gonzales v. Marcos,15 Lacson v. Perez 16 Albania v. COMELEC,17 Acop v. Guingona II18 and David v.

9 Ticzon v. Video Post Manila, Inc. G.R. No. 136342. June 15, 2000, citing Bacolod-Murcia Planters’ Association, Inc. v. Bacolod-Murcia Milling Co., Inc., 30 SCRA 67, 68–69, October 31, 1969.

10 See Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 1996 Ed. 11 Philippine Airlines v. Pascua, 409 SCRA 195. 12 Vda. De Davao v. Court of Appeals, 426 SCRA 91 (2004), citing cases. 13 Ticzon v. Video Post Manila, Inc., supra, citing ABS-CBN Broadcasting Corporation v. Comelec, G.R. No. 133486, January 28, 2000; Salonga v. Cruz-Pano, 134 SCRA 438, February 18, 1985.). 14 41 SCRA 1. 15 65 SCRA 624. 16 357 SCRA 756. 17 435 SCRA 98. 18 383 SCRA 577, citing Viola v. Alunan III, 276 SCRA 501[409]. 268 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Macapagal-Arroyo,19 among other cases, come to mind. David lists the exceptions to the rule on mootness, thus: The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review. A perusal of the cases cited, however, readily reveals that the subject matters thereof involved justiciable controversies. In Dela Camara, for example, there was the challenged order approving an application for bail bond but at an excessive amount. The case was rendered moot by the issuance of a subsequent order reducing the amount. In Gonzales, the petition questioning the validity of the creation of the CCP Complex by then President Marcos via a executive 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 Lacson, assailed was the issuance of Proclamation No. 36 declaring a state rebellion; in Albania, the petition to nullify the decision of the COMELEC annulling the proclamation of petitioner as municipal mayor was rendered moot by the election and proclamation of a new set of municipal officers; in Acop, the petition to exclude 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 terminated; and in David, the petition challenging the validity of Presidential Proclamation (PP) 1017 declaring a state of emergency was rendered moot by the issuance of PP 1021 declaring that the state of national emergency has ceased. The element of justiciable controversy is palpably absent in the petitions at bar. For, as earlier explained, there is really no MOA-AD to speak of since its perfection or effectivity was aborted by supervening events, to wit: the TRO the Court issued 19 G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, 171424, May 3, 2006, 489 SCRA 160. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J VELASCO, JR., DISSENTING OPINION 269 enjoining the Kuala Lumpur signing of the MOA and the subsequent change of mind of the President not to sign and pursue the covenant. To 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 MOA- AD having been unsigned. Be 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 Constitution to be addressed. Surely the Court cannot reasonably formulate guiding and controlling constitutional principles, precepts, doctrines or rules for future guidance of both bench and bar based on a non-existing ancestral domain agreement or by anticipating what the executive department will likely do or agree on in the future in the peace negotiating table. Some of my esteemed colleagues in the majority have expressed deep concern with the ramifications of a signed MOA- AD. Needless to stress, their apprehension as to such ramifications is highly speculative. Thus, judicial inquiry, assuming for the nonce its propriety, has to come later, again assuming that the peace instrument is eventually executed and challenged. At its present unsigned shape, the MOA-AD can hardly be the subject of a judicial review. The allegations of unconstitutionality are, for now, purely conjectural. The MOA-AD is only a part of a lengthy peace process that would eventually have culminated in the signing of a Comprehensive Compact. Per my count, the MOA-AD makes reference to a Comprehensive Compact a total of eight times. The last paragraph of the MOA-AD even acknowledges that, before its key provisions come into force, there would still be more consultations and deliberations needed by the parties, viz: Matters concerning the details of the agreed consensus [point] on Governance not covered under this Agreement shall be deferred to, and discussed during, the negotiations of the Comprehensive Compact.

SEPARATION OF POWERS TO BE GUARDED

Over and above the foregoing considerations, however, is the matter of separation of powers which would likely be disturbed 270 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I should the Court meander into alien territory of the executive and dictate how the final shape of the peace agreement with the MILF should look like. The system of separation of powers contemplates the division of the functions of government into its three branches: the legislative which is empowered to make laws; the executive which is required to carry out the law; and the judiciary which is charged with interpreting the law.20 Consequent to the actual delineation of power, each branch of government is entitled to be left alone to discharge its duties as it sees fit.21 Being one such branch, the judiciary, as Justice Laurel asserted in Planas v. Gil,22 “will neither direct nor restrain executive [or legislative action].” Expressed in another perspective, the system of separated powers is designed to restrain one branch from inappropriate interference in the business,23 or intruding upon the central prerogatives,24 of another branch; it is a blend of courtesy and caution, “a self- executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.”25 But this is what the petitioners basically seek: through the overruling writs of the Court, to enjoin the Philippine Peace Negotiating Panel, or its equivalent, and necessarily the President, from signing the proposed MOA-AD and from negotiating and executing in the future similar agreements. The sheer absurdity of the situation where the hands of executive officials, in their quest for a lasting and honorable peace, are sought to be tied lest they agree to something irreconcilable with the Constitution, should not be lost on the Court. Under our constitutional set up, there cannot be any serious dispute that the maintenance of the peace, insuring domestic

20 Black’s Law Dictionary, 6th ed., p. 1305. 21 Tan v. Macapagal, 43 SCRA 677. 22 67 Phil. 62. 23 Youn[g]stown Sheet & Tube Co. v. Sawyer, 343 U.S. 528, 635 (1952). 24 US [v.] Munoz-Flores, 495 U.S. 385. 25 Buckley v. Valeo, 424 U.S. 1. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J VELASCO, JR., DISSENTING OPINION 271 tranquility26 and the suppression of violence are the domain and responsibility of the executive.27 Now then, if it be important to restrict the great departments of government to the exercise of their appointed powers, it follows, as a logical corollary, equally 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.28 Favorably accommodating the petitioners under the premises cannot but be viewed as a indirect attempt on the part of the Court to control and dictate on the peace prerogatives of the executive 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 seeks to safeguard.

ONE LAST WORD

The Executive Secretary has categorically declared that the government will not sign the MOA-AD,29 which, as couched, may indeed be constitutionally frail or legally infirm. But 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 correlative obligation on either negotiating party. As an unsigned writing, it cannot be declared unconstitutional, as some of my colleagues are wont to do. Accordingly, I vote to DENY the petitions. The factual and legal situations call for this disposition. 26 Marcos v. Manglapus, 177 SCRA 668. 27 Section 18, Article VII of the Constitution charges the President, as Commnader in Chief of the Armed Forces of the Philippines, the duty of preventing or suppressing lawless violence, invasion or rebellion. 28 O’Donaghue v. US, 289 U.U. [U.S.] 516 (1933). 29 Compliance dated September 1, 2008 of respondents. 272 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

DISSENTING OPINION

Nachura, J.:

I respectfully dissent from the ponencia of Justice Carpio Morales, even as I agree with its holding that the MOA-AD is not an international agreement or unilateral declaration binding on the Philippines under international law.

STATEMENT OF THE CASE

We are confronted with various petitions assailing the constitutionality of the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the respondent Government of the Republic of the Philippines Peace Panel (GRP),1 and the Moro Islamic Liberation Front (MILF),2 to wit: 1. a petition for Prohibition and Mandamus with prayer for the issuance of a Writ of Preliminary Injunction and Temporary Restraining Order (TRO) docketed as G.R. No. 183591, filed by the province of North Cotabato3 against respondents GRP, Gen. Hermogenes Esperon, Jr.,4 and Secretary Eduardo Ermita,5 enjoining this Court to: (a) compel respondents to disclose the contents of the MOA-AD, (b) prohibit respondents from formally signing the MOA-AD, or, in the alternative, (c) declare the initialed MOA-AD as unconstitutional; 2. a petition for Prohibition and Mandamus with urgent prayer for the issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order

1 Represented by Secretary Rodolfo Garcia, Atty. Leah Armamento, Atty. Sedfrey Candelaria, Ryan Mark Sullivan. 2 Breakaway group of the Moro National Liberation Front. 3 Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piñol, for and in his own behalf. 4 In his capacity as Presidential Adviser on the Peace Process. 5 In his capacity as Executive Secretary. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 273

docketed as G.R. No. 183752 filed by the City Government of Zamboanga, et al.,6 against respondents (except Sec. Ermita), enjoining this Court to: (a) compel respondents to disclose the contents of the MOA-AD, (b) prohibit respondents from signing the MOA-AD, (c) exclude the City of Zamboanga from being part of the Bangsamoro Juridical Entity (BJE), subject-matter of the MOA-AD, or, should the MOA-AD be signed, (d) declare it as null and void. 3. a petition for Injunction and/or Declaratory Relief with prayer for the issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order docketed as G.R. No. 183893 filed by the City of Iligan7 against respondents, enjoining this Court to: (a) enjoin respondents from signing the MOA-AD, or, in the alternative, from implementing the same, and (b) declare the MOA-AD as unconstitutional; 4. a petition for Certiorari, Mandamus and Prohibition with prayer for issuance of Writ of Injunction and/or Temporary Restraining Order docketed as G.R. No. 183951 filed by provincial government of Zamboanga Del Norte,8 Rep. Cecilia Jalosjos Carreon,9 Rep. Cesar G. Jalosjos,10 and Seth Frederick Jalosjos, Fernando R. Cabigon, Jr., Uldarico Mejorada II, Edionar Zamoras, Edgar J. Baguio, Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito Darunday, Angelica Carreon, and Luzviminda Torrino11 6 Represented by the City Mayor of Zamboanga, Celso Lobregat. Other petitioners are Rep. Isabelle Climaco, District 1 of Zamboanga City and Rep. Erico Basilio A. Fabian, District 2, City of Zamboanga. 7 Represented by City Mayor Lawrence Lluch Cruz. 8 Represented by Gov. Rolando E. Yebes and Vice-Governor Francis H. Olvis. 9 1st Congressional District. 10 3rd Congressional District. 11 Members of the Sangguniang Panlalawigan of Zamboanga del Norte Province. 274 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

against respondents (except Sec. Ermita), enjoining this Court to: (a) declare the MOA-AD as null and void and without operative effect, and (b) restrain respondents from executing the MOA-AD. 5. a petition for Prohibition filed by Ernesto Maceda, Jejomar Binay, and Aquilino L. Pimentel III against respondents (except Gen. Esperon and Sec. Ermita) and the MILF Peace Negotiating Panel,12 enjoining this Court to: (a) prohibit and permanently enjoin respondents from formally signing the MOA-AD or any other agreement derive therefrom or with terms similar thereto as well as from executing any of its provisions, and (b) nullify the MOA-AD for being contrary to the Constitution and the laws; 6. a petition-in-intervention for Prohibition filed by Hon. Marino Ridao and Kisin Buxani, residents of Cotabato City, lodged with the petitions of the Province of Cotabato and the City of Zamboanga in G.R. Nos. 183591 and 183752, enjoining this Court to: (a) prohibit respondents from signing the MOA-AD, (b) declare the MOA-AD as null and void, or, in the alternative, (c) exclude all the 37 barangays of Cotabato City from the coverage of the BJE territory; 7. a petition-in-intervention for Prohibition, Mandamus and Injunction filed by the Municipality of Linamon,13 enjoining this Court to: (a) permanently restrain respondents from signing the MOA-AD, or (b) permanently restrain respondents from implementing the initialed MOA-AD, if and when the MILF insists on its enforcement, and (c) declare the MOA-AD as unconstitutional. 8. a petition-in-intervention for Prohibition filed by the City Government of Isabela, Basilan Province,14

12 Represented by its Chairman Mohagher Iqbal. 13 Represented by Mayor Noel Deano. 14 Represented by Mayor Cherrylyn Santos-Akbar. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 275

enjoining this Court to: (a) prohibit respondents from signing the MOA-AD, in the alternative, (b) declare the MOA-AD as null and void, and (c) exclude all the 45 barangays of the City of Isabela from the BJE territory; 9. a petition-in-intervention for Prohibition filed by the province of Sultan Kudarat,15 enjoining this Court to: (a) prohibit respondents from signing the MOA-AD, (b) declare the MOA-AD as null and void, and (c) exclude the 214 barangays of Sultan Kudarat Province from the BJE territory; 10. a petition-in-intervention for Prohibition filed by members of the bar Carlos Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, and Richalez Jagmis, all from Puerto Princesa City, Palawan, enjoining this Court to: (a) prohibit respondents from implementing the MOA-AD which they had signed with the MILF Peace Negotiating Panel, in the alternative, (b) declare the MOA-AD as null and void, and (c) exclude the Province of Palawan and the Municipalities of Bataraza and Balabac from the BJE territory; 11. a petition-in-intervention for Prohibition filed by Ruy Elias Lopez as a member of the Bagobo tribe of indigenous people living in Mindanao, enjoining this Court to: (a) permanently enjoin respondents from signing the MOA-AD, and, in the alternative, (b) declare the MOA-AD as unenforceable against other indigenous peoples; 12. a petition-in-intervention for Mandamus and Prohibition filed by Senator Manuel Roxas, enjoining this Court to: (a) direct respondents to publicly reveal or disclose the contents of the MOA-AD, including all documents pertinent, related, attached thereto, and order respondents to furnish petitioner-in-intervention Sen. Roxas with the draft and/or final, complete, official, and initialed copies of said MOA-AD, and (b) command respondents from acting on and signing and implementing the MOA-AD; and 15 Represented by Gov. Suharto Mangudadatu. 276 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

13. a petition-in-intervention for Prohibition filed by former Senator Franklin Drilon and Atty. Adel Tamano, enjoining this Court to prohibit and permanently enjoin respondents from further signing, executing, and entering into the MOA-AD or any other agreement with terms similar to the MOA and/or from proceeding or implementing the MOA-AD. These cases have been consolidated and jointly heard on oral argument by the Court. In all, the main petitions and the petitions-in-intervention bewail the lack of public consultation and invoke violation of the people’s right to information16 in the drafting of the MOA- AD. The numerous petitions pray for the following reliefs: 1. To prevent the signing of, and, in the alternative, implementation of the initialed, MOA-AD; 2. To be furnished copies of the MOA-AD grounded on their right to information on matters of public concern; 3. To exclude certain cities and barangays from the BJE territory; 4. To declare the MOA-AD as unconstitutional riddled as it is with constitutional infirmities; and 5. As regards Intervenor Lopez, to declare the MOA-AD unenforceable against indigenous peoples.

THE FACTS

Before anything else, however, the difficult facts leading to this cause celebre.

16 Article III, Section 7 of the Constitution:

SEC. 7. The right of the people to information on matters of public concern shall be recognized. Access 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 citizen, subject to such limitations as may be provided by law. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 277

The advent of the 1987 Constitution captured and reflected our nation’s quest for true and lasting peace in Muslim Mindanao. The new constitution included authority for the creation of an Autonomous Region of Muslim Mindanao (ARMM).17 This trailblazing legal framework was actually catalyzed, as early as 1976, with the signing of the Tripoli Agreement in Libya between the GRP and the MNLF. On August 1, 1989, Congress passed and approved Republic Act No. 6734 entitled “An Act Providing for an Organic Act for 17 Article X, Sections 15, 18 and 19 of the Constitution:

SEC. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras 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 framework of this Constitution and the national sovereignty and territorial integrity of the Republic of the Philippines.

SEC. 18. The Congress 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. The organic act shall define the basic structure of the government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic act shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws. The 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. 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. 278 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I the Autonomous Region in Muslim Mindanao.” Out of the 13 provinces and nine cities subjected to a plebiscite conducted on November 19, 1989, only four provinces voted for their inclusion in the ARMM, namely: Provinces of Maguindanao, Lanao Del Sur, Sulu and Tawi-Tawi. Then, on September 2, 1996, the almost elusive pursuit of peace appeared to be within reach–the GRP and the MNLF entered into and signed a total and final peace agreement implementing the 1976 Tripoli Agreement entitled “The Final Agreement on the Implementation of the 1976 Tripoli Agreement between the Government of the Republic of the Philippines and the Moro National Liberation Front.” Consistent thereto, on March 31, 2001, Congress amended the first Organic Act (RA No. 6734) and enacted RA No. 9054 for the expansion of the ARMM. The plebiscite for the ratification of the amended Organic Act conducted on August 14, 2001 resulted in the addition of Basilan Province and Marawi City to the original four provinces comprising the ARMM. Peace was almost at hand, but not quite. The MILF, a breakaway faction of the MNLF, wanted a separate peace. It rejected the final peace agreement between the GRP and the MNLF, and continued their armed hostilities. Once again, in the quest for lasting peace, the GRP initiated peace talks with the MILF. On July 18, 1997, the Agreement on the General Cessation of Hostilities was signed between the GRP and the MILF Peace Panels. Next, on August 27, 1998, the General Framework of Agreement of Intent was signed by both parties at the Dawah Center, Crossing Simuay, Sultan Kudarat, Maguindanao. All these agreements, notwithstanding, at the end of 1999 to 2000, the MILF fortified its stronghold in 46 camps, attacked a number of municipalities in Central Mindanao, and took control of the town hall of Kauswagan, Lanao Del Norte. Government responded by twice declaring an “all-out war” against the MILF. On April 30, 2000, the MILF unilaterally suspended the GRP- MILF Peace Talks and, likewise, declared an all-out war against the GRP and ordered an all-out offensive on Armed Forces of the Philippines (AFP) camps all over Mindanao. Various attempts at a peace settlement were unsuccessful. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 279

On February 28, 2001, President Arroyo issued Executive Order No. 3 defining the policy and administrative structure for the government’s comprehensive peace effort, in relevant part:

SEC. 3. The Three Principles of the Comprehensive Peace Process. The comprehensive peace process shall continue to be governed by the following underlying principles: a. A comprehensive peace process should be community- based, reflecting the sentiments, values and principles important to all Filipinos. Thus, it shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community. b. A comprehensive peace process aims to forge a new social compact for a just, equitable, humane and pluralistic society. It seeks 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 exercise of rights and liberties guaranteed by the Constitution, and where they may compete for political power through an electoral system that is free, fair and honest. c. A comprehensive peace process seeks a principled and peaceful resolution to the internal armed conflicts, with neither blame nor surrender, but with dignity for all concerned.

SEC. 4. The Six Paths to Peace. – The components of the comprehensive peace process comprise the processes known as the “Paths to Peace.” These components processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following: a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This 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. This may require administrative action, new legislation, or even constitutional amendments. 280 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

b. CONSENSUS-BUILDING AND EMPOWERMENT FOR PEACE. This component includes continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of people’s participation in the peace process. c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENT REBEL GROUPS. This 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. PROGRAMS FOR RECONCILIATION, REINTEGRATION INTO MAINSTREAM SOCIETY AND REHABILITATION. This 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, demobilized combatants and civilian victims of the internal armed conflicts. e. ADDRESSING CONCERNS ARISING FROM CONTINUING ARMED HOSTILITIES. This 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. BUILDING AND NURTURING A CLIMATE CONDUCIVE TO PEACE. This component includes peace advocacy and peace education programs, and the implementation of various confidence-building measures. In addition thereto, President Arroyo issued Memorandum of Instructions to the GRP Peace Panel providing the General Guidelines on the Peace Talks with the MILF. On April 3, 2001, as a consequence of the signing of the Agreement on the General Framework for the Resumption of Peace Talks between the GRP and the MILF on March 24, 2001, in Kuala Lumpur, Malaysia, the MILF suspended all military actions in their areas of operation. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 281

Subsequently, two rounds of Formal Peace Talks occurred in June 20–22, 2001 and August 5–7, 2001, respectively, with the latter resulting in the signing of the Implementing Guidelines on the Security Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 and effectively placing the parties on a cease-fire status. This agreement contained three strands, specifically: (1) the Security Aspect; (2) Humanitarian, Rehabilitation and Development Aspects; and (c) the Ancestral Domain Aspect. And as previously stated, RA No. 9054 amending the Organic Act was ratified with the inclusion of Basilan Province and Marawi City in the ARMM. Yet, incidences of violence and violation of the cease-fire pact by the MILF continued to occur. On July 19, 2003, the GRP and the MILF once again agreed to a cessation of hostilities and resume peace talks. In connection therewith, on September 2, 2003, President Arroyo issued Memorandum of Instructions to the GRP Peace Panel, i.e., Revised General Guidelines on the Peace Talks with the Moro Islamic Liberation Front. Therefrom, the continuation of several rounds of previously held exploratory talks was held on June 20–21, 2005 at Kuala Lumpur, Malaysia and resulted in the forging of clear parameters and principles to be pursued on the Governance Strand (Aspect) of the Ancestral Domain. This was followed by another round of Exploratory Talks on September 15–16, 2005 also in Kuala Lumpur, Malaysia, where both panels adopted the points on the same strand/aspect of Ancestral Domain provided in the Peace Agreement of 2001 between the GRP and the MILF. The peace process finally culminated in the drafting of the subject MOA-AD intended to be signed in Kuala Lumpur, Malaysia on August 5, 2008. News report began to appear on the contents of the MOA- AD and its scheduled signing on August 5, 2008. Main petitioners, except petitioners in G.R. No. 183962, all scrambled to procure a copy of the draft of this MOA-AD. Inability to secure copies thereof and a categorical response from respondent GRP, prompted the filing of these petitions. On the eve of the scheduled signing, by Resolution dated August 4, 2008, we issued a Temporary Restraining Order commanding and 282 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I directing respondents and their agents to cease and desist from formally signing the MOA-AD. We likewise required the Office of the Solicitor General (OSG) to submit to the Court and petitioners the official copy of the final draft of the MOA-AD. On August 8, 2008, the OSG filed its Compliance with our Resolution. Meanwhile, outbreak of violence occurred in some of the herein petitioner local government units. Oral arguments were held on August 15, 22, and 29, 2008. On August 19, 2008, the OSG filed a Manifestation and Motion to Dismiss the petitions on the ground that the Executive Department has declared it will thoroughly review MOA-AD and pursue further negotiations addressing all objections hurled against said document. The OSG’s motion was greatly opposed by the petitioners. On August 28, 2008, the Executive Department pronounced that it would no longer sign the MOA-AD. On the last day of the oral arguments, Madame Solicitor General, on interpellation, declared that the Executive Department, specifically, respondent Sec. Ermita has declared that the MOA-AD “will not be signed in this form, or in any other form.” Moreover, on September 3, 2008, President Arroyo dissolved the GRP Peace Panel. Finally, in compliance to the Court’s directive upon termination of the oral arguments, the parties’ submitted their respective Memoranda. Petitioners and petitioners-in-intervention maintain that despite the supervening events and foregoing declarations and acts of the Executive Department, there remains a justiciable controversy, a conflict of legal rights by the parties that ought to be adjudicated by this Court. They asseverate that, supervening events notwithstanding, the cases at bench have not been mooted, or, even if so, the issues they raised fall within the exceptions to the moot and academic principle. Consequently, even with the dissolution of the GRP Peace Panel and the positive and unequivocal declaration by the Executive Department that the MOA-AD will not be signed in this form or in any other form, the constitutionality of the MOA-AD may still be ruled upon. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 283

At the other end of the spectrum, however, the OSG is adamant that this contentious MOA-AD 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 Court. Furthermore, the OSG insists that the petitions and petitions-in-intervention must be dismissed on the ground of mootness, supervening events having rendered the assailed MOA-AD inexistent and all the reliefs prayed for satisfied and fulfilled. In addition, the OSG argues that a ruling by this Court on the constitutionality of the MOA-AD violates the doctrine of separation of powers as the negotiation of the MOA-AD is embraced in the President’s powers and in the nature of a political question, outside the pale of judicial review.

THE ISSUES

From the pleadings and as delineated on oral arguments, the issues raised are both procedural and substantive, namely 1. Procedural (i) Whether petitioners and petitioners-in- intervention have locus standi; (ii) Whether the petitions and petitions-in- intervention continue to present a justiciable controversy still ripe for adjudication; and (iii)Whether the petitions and petitions-in- intervention have become moot and academic. 2. Substantive (i) Whether the MOA-AD is unconstitutional; (ii) Whether the GRP Peace Panel (respondents) committed grave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initialed the MOA-AD. 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. Accordingly, the petitions should be dismissed. 284 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

I. Procedural i. Locus Standi

Our pronouncements in David v. Macapagal-Arroyo18 are instructive: The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or taxpayer. x x x x However, to prevent just about any person from seeking 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 United State Supreme Court laid down the more stringent direct injury test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.

18 G.R. No. 171396, May 3, 2006, 489 SCRA 160. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 285

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where the transcendental importance of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the far- reaching implications 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 citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings. x x x x By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) the cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. The test we have laid down is whether the party has alleged such a personal stake 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 286 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I for illumination of difficult questions.19 When an individual sues as a citizen, 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.20 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.21 The 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. Considering that the Court has discretion to relax this procedural technicality, and given the liberal attitude it has adopted in a number of earlier case, we acknowledge the legal standing of the petitioners herein. ii. Ripeness for Adjudication A mandatory requirement for the Court’s exercise of the power of judicial review is the existence of an actual case or controversy. An actual case or controversy is a conflict of legal rights, an assertion of opposite legal claims which can be resolved on the basis of existing law and jurisprudence.22 The 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.23 But it is not enough that the controversy exists at the outset. To qualify for adjudication, it is necessary that the actual controversy be extant at all stages of review, not merely at the time the complaint is filed.24 This is to say that the case is ripe for judicial determination. 19 Province of Batangas v. Romulo, G.R. No. 152772 [152774], May 27, 2004. 20 Francisco v. House of Representatives, 460 Phil. 830, 896 (2003). 21 Supra note 18. 22 Guingona v. Court of Appeals, G.R. No. 125532, July 10, 1998. 23 John Hay People’s Alternative Coalition v. Lim, G.R. No. 119775, October 24, 2003. 24 Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008), citing Arizonians for Official English v. Arizona, 117 S. Ct. 1055. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 287

In Guingona v. Court of Appeals,25 we had occasion to declare: Closely related to the requirement of “actual case,” Bernas continues, is the second requirement that the question is “ripe” for adjudication. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. Thus, in PACU v. Secretary of Education, the Court declined to pass judgment on the question of the validity of Section 3 of Act No. 2706, 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 actually operating, and none of them claimed that the secretary had threatened to revoke their permit. In Tan v. Macapagal, the Court said that Petitioner Gonzales “had the good sense to wait” until after the enactment of the statute [Republic Act No. 4913 (1967)] requiring the submission to the electorate of certain proposed amendments to the Constitution [Resolution Nos. 1 and 3 of Congress as a constituent body (1967)] before he could file his suit. It was only when this condition was met that the matter became ripe for adjudication; prior to that stage, the judiciary had to keep its hands off. The doctrine of separation of powers calls for each branch of government to be left alone to discharge its duties as it sees fit. Being one such branch, the judiciary, Justice Laurel asserted, “will neither direct nor restrain executive [or legislative action] x x x.” The legislative and the executive branches are not allowed to seek advice on what to do or not to do; thus, judicial inquiry has to be postponed in the meantime. Before a court may enter the picture, a prerequisite is that something has been accomplished or performed by either branch. Then may it pass on the validity of what has been done but, then again, only “when x x x 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 25 Supra note 22. 288 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Court of the Temporary Restraining Order, there was an actual extant controversy. The signing of the MOA-AD in Malaysia had been scheduled; several foreign dignitaries were invited to grace the ceremony. The timeliness of the exercise of power by the Court may have prevented a possible constitutional transgression. It was so timely an exercise of judicial review over an actual controversy by the Court such that it may have provided the impetus sufficient for the Executive Department to “review” its own acts, and to decided, subsequently, to abort the entire MOA-AD. However, supervening events effectively eliminated the conflict of rights and opposite legal claims. There is no longer an actual case or controversy between the parties. The GRP Peace Panel, respondents in these consolidated cases, has been disbanded by the President, along with the resounding declaration that “the MOA-AD will not be signed in its present form, or in any other form.” The Memorandum issued by Executive Secretary Ermita to the Solicitor General is unequivocal: “No matter what the Supreme Court ultimately decides, the government will not sign the MOA.” The subsequent events were sufficient to alter the course of these judicial proceedings. The President’s decision not to sign the MOA-AD may even be interpreted as a rectification of flawed peace negotiations by the panel. But to this Court, it is clearly a supervening event that affects the ripeness of the case for adjudication. With an abandoned and unsigned MOA- AD and a dissolved peace Panel, any purported controversy has virtually disappeared. Judicial review cannot be exercised where the incipient actual controversy does not remain extant until the termination of the case; this Court cannot provide reliefs for controversies that are no longer there. After the mandamus aspect of the initial petitions had been satisfied, what remains are basically the petitions for certiorari and prohibition.26 The reliefs prayed for include the declaration

26 The records show pleadings filed by two Respondents-in- Intervention, namely: the Muslim Legal Assistance Foundation, Inc. and the Consortium of Bangsamoro Civil Society, represented by its Chairman Guiamel M. Alim, and Bangsamoro Women Solidarity Forum, represented by its Chair Tarhata M. Maglangit. In their PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 289 of nullity of the MOA-AD and the prohibition on the members of the Peace Panel from signing the MOA-AD. These reliefs are unavailing, because the peace Panel has been dissolved and, by the nature of things, rendered permanently unable to sign any agreement. On the other hand, the MOA-AD sought to be nullified does not confer any rights nor imposes any duties. It is, as of today, non-existent. In Montesclaros v. COMELEC,27 we held that a proposed bill is not subject to judicial review, because it is not a law. A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill having no legal effect violates no constitutional right or duty. The Court 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 Congress. This ruling finds a parallel in a proposed agreement to be entered into by the Executive Department which has been aborted, unsigned, and “will not be signed in its present form or in any other form.” iii. Mootness A 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. Generally, courts decline jurisdiction over such case, or dismiss it on ground of mootness.28 Thus, in Gonzales v. Narvasa,29 where the constitutionality of the creation of the Preparatory Commission on Constitutional Reform (PCCR) was questioned, the Court dismissed the

respective memorandum, these two intervenors uniformly pray for the lifting of the temporary restraining order issued by this Court, and to require the Executive Department to fulfill its obligation under the MOA-AD and continue with the peace talks with the MILF with the view of forging a Comprehensive Compact. 27 G.R. No. 152295, July 9, 2002. 28 David v. Macapagal-Arroyo, supra note 18. 29 G.R. No. 140635 [140835], August 14, 2000. 290 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I petition because by then, the PCCR had ceased to exist, having finished its work and having submitted its recommendations to then President Estrada. In Abbas v. COMELEC,30 we refused to rule on a perceived potential conflict between provisions of the Muslim Code and those of the national law. However, it is axiomatic that courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; or fourth, when the case is capable of repetition yet evasive of review.31 As to the first exception, there is no violation of the Constitution that will justify judicial review despite mootness, because the MOA-AD has not been signed – and will not be signed. The eminent Justice Antonio T. Carpio, in his separate opinion, even as he expressed fears of numerous “drastic changes” in the Constitution, acknowledges that these will take place only IF the MOA-AD will be signed. The scholarly ponencia concludes with the finding that the MOA-AD is unconstitutional, obviously referring to its provisions. So does the separate opinion of Justice Ruben T. Reyes. But, to repeat, the MOA-AD is, as of today, non-existent. Thus, as it is, these dreaded constitutional infractions are, at best, anticipatory, hypothetical or conjectural. Neither will the second exception apply. The issue of paramount public interest will arise only IF the MOA-AD is signed. With the Peace Panel dissolved, and with the unequivocal pronouncement of the President that the MOA- AD will not be signed, there is no occasion to speak of the exceptional or extraordinary character of the controversy as would render the case ripe for resolution and susceptible of judicial determination.

30 G.R. No. 89651, November 10, 1989, 179 SCRA 287. 31 David v. Macapagal-Arroyo, supra note 18. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 291

Given the events that led to the issuance by the Court of a TRO in order to stop the signing of the MOA-AD in Malaysia on August 5, 2008, it would appear that there is a need for the Court to formulate controlling principles, precepts and rules to guide the bench, the bar and the public – particularly a peace negotiating panel – in future peace talks. However, a scrutiny of the factual antecedents of this case reveals that no such imperative exists. It is well to note that Executive Order No. 3, which created the GRP Peace Panel, explicitly identifies the Constitution as the basic legal framework for the peace negotiations. It states that the GRP Peace Panel was created with the primary objective to attain “a just, comprehensive and enduring peace under a rule of law and in accordance with constitutional processes,”32 with “a need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the people’s participation.”33 The same Executive Order provides sufficient standards to guide the GRP Peace Panel in the performance of its avowed work. Then, there is the March 1, 2001 Memorandum of Instructions from the President, followed by the Memorandum of Instructions dated September 8, 2003. Common to the instructions is the provision that the negotiation shall be conducted “in accordance with the mandate of the Constitution, the Rule of Law, and the Principles of Sovereignty and Territorial Integrity of the Republic of the Philippines.” These are adequate guidelines for the GRP Peace panel; it would be superfluous for the Court to issue guidelines which, presumably, will be similar to the ones already in existence, aside from possibly trenching on the constitutional principle of separation of powers. If the respondents-members of the GRP Peace Panel, in the conduct of the negotiation, breached these standards or failed to heed the instructions, it was not for lack of guidelines. In any event, the GRP Peace Panel is now disbanded, and the MOA-AD unsigned and “not to be signed.” There is no necessity

32 1st WHEREAS clause, EXECUTIVE ORDER No. 3.

33 Last WHEREAS clause, EXECUTIVE ORDER No. 3. 292 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I for this Court to issue its own guidelines as these would be, in all probability, repetitive of the executive issuances. The fourth exception, that the issue is “capable of repetition yet evasive of review,” is likewise inapplicable in this case. In this connection, we recall Sanlakas v. Reyes,34 where the Court dismissed the petitions which assailed as unconstitutional Proclamation No. 427, declaring a state of rebellion, and General Order No. 4, after the President had issued Proclamation No. 435 declaring that the state of rebellion had ceased to exist. Apart from the brilliant ponencia of Justice Dante O. Tinga, particularly illuminating is the separate opinion of Chief Justice Artemio V. Panganiban when he wrote: While the Petitions herein have previously embodied a live case or controversy, they now have been rendered extinct by the lifting of the questioned issuances. Thus, nothing is gained by breathing life into a dead issue. Moreover, without a justiciable controversy, the Petitions have become pleas for declaratory relief, over which the Supreme Court has no original jurisdiction. Be it remembered that they were filed directly with this Court and thus invoked its original jurisdiction. On the theory that the “state of rebellion” issue is “capable of repetition yet evading review,” I respectfully submit that the question may indeed still be resolved even after the lifting of the Proclamation and Order, provided the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their issuance. 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 Order. Neither have they shown that this Court 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 Court may still pass upon the issue on the theory that it is “capable of repetition yet evading

34 G.R. No. 159085, February 3, 2004, 421 SCRA 656. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 293

review,” and the case would not be an original action for declaratory relief. In short, the theory of “capable of repetition yet evading review” may be invoked only when this Court has jurisdiction over the subject matter. It cannot be used in the present controversy for declaratory relief, over which the Court has no original jurisdiction. Given 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. Substantive

I respectfully submit that the Court should view this case from the perspective of executive power, and how it was actually exercised in the formulation of the GRP Peace Panel until the challenged MOA-AD was crafted in its present abandoned form. The President is the Chief Executive of the Republic and the Commander-in-Chief of the armed forces of the Philippines. Section 1, Article VII of the Philippine Constitution provides: “The executive power shall be vested in the President of the Philippines.” Additionally, Section 18, Article VII, states:

SEC. 18. The President shall be the Commander-in-Chief 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 requires it, he may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within 48 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 Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension which revocation shall not be set aside by the 294 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. In Sanlakas v. Reyes,35 we held that the above provision grants the President, as Commander-in-Chief, a sequence of graduated powers, to wit: (1) the calling out power, (2) the power to suspend the privilege of the writ of habeas corpus, and (3) the power to declare martial law. Thus: In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power. However, as we observed in Integrated Bar of the Philippines v. Zamora, “[t]hese conditions are not required in the exercise of the calling out power. The only criterion is that ‘whenever it becomes necessary,’ the President may call the armed forces ‘to prevent or suppress lawless violence, invasion or rebellion.’” Implicit in these is the President’s power to maintain peace and order. In fact, in the seminal case of Marcos v. Manglapus,36 we ruled: [T]his case calls for the exercise of the President’s powers as protector of the peace. The power of the President to keep the peace is not limited merely to exercising the commander-in- chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. 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

35 Supra note 34. 36 G.R. No. 88211, September 15, 1989, 177 SCRA 668. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 295

specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President’s exercising as Commander-in-Chief 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 keep the peace, and maintain public order and security. Undoubtedly, 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 exercise of this power, the President issued Executive Order No. 3, where she mapped out the principles to be followed in the comprehensive peace process: (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.37 In Section 4 thereof, the president identified the 6 paths to peace, with processes being interrelated and not mutually exclusive, and must be pursued simultaneously in a coordinated and integrated fashion: (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. Executive Order No. 3, together with the Memorandum of Instructions of March 1, 2001 and the Memorandum of Instructions of September 8, 2003, constitutes the mandate of the GRP Peace panel. It was within the parameters of this mandate that the GRP Peace panel was to negotiate with the MILF and arrive at a Comprehensive Peace Agreement. It was pursuant to these strictures that the MOA-AD was crafted, initialed and scheduled for signing. Even as the petitioners and petitioners-in-intervention roundly condemn the MOA-AD, as currently worded, to have

37 Section 3, EXECUTIVE ORDER No. 3. 296 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I violated constitutional and statutory principles – and assail the GRP 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 question about the validity of Executive Order No. 3 and the Instructions issued by the President. Considering the events that have supervened since the filing of the initial petition and the issuance by this Court of a TRO, 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 relief/s that this Court can grant the parties, taking into account their respective prayers. These are: 1. Mandamus. a) Three petitions and two petitions-in-intervention praying for a writ of mandamus, to compel the production of the official copy of the MOA-AD, the petitioners invoking their right to information. These petitions are now mooted, because the requested documents have already been produced. b) Two respondents-intervenors who pray that the Executive Department be directed to sign the MOA-AD and to continue with the peace negotiations. With the definite pronouncement of the President that the MOA-AD will not be signed in its present form or in any other form, this prayer cannot be granted, because the Court cannot compel a party to enter into an agreement. 2. Declaratory Relief. One petition for declaratory relief which may not be granted because the Court has no original jurisdiction over petitions for declaratory relief.38 3. Certiorari and Prohibition. One petition for certiorari and 12 petitions for prohibition, including the petitions-in- intervention, seek a declaration of nullity of the MOA-AD (for being unconstitutional), a writ of certiorari against the members of the GRP Peace Panel for having acted with grave abuse of discretion, and a writ of prohibition to prevent the signing of the MOA-AD.

38 Panganiban, Separate Opinion, Sanlakas v. Reyes, supra note 34. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J NACHURA, DISSENTING OPINION 297

There’s the rub. Because the MOA-AD will not be signed “in its present form, or in any other form,” certiorari will not lie. The Court cannot review an inexistent agreement, an unborn contract that does not purport to create rights or impose duties that are legally demandable. Neither will the remedy of prohibition lie against a GRP Peace Panel that no longer exists. To do so would be to flog a dead horse. The ponencia would wish to get around this inescapable truth by saying: “The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents’ almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion.” With due respect, I beg to disagree. Grave abuse of discretion can characterize only consummated acts (or omissions), not an “almost (but not quite) consummated act.” Chief Justice Panganiban, in his separate opinion in Sanlakas, writes: “The first requirement, the existence of a live case or controversy, means that the existing litigation is ripe for resolution and susceptible of judicial determination, as opposed to one that is conjectural or anticipatory, hypothetical or feigned.” It is not the province of this Court to assume facts that do not exist. It is for the foregoing reasons that I respectfully register my dissent. I vote to DENY the petitions. 298 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

SEPARATE OPINION

Reyes, J.:

Nemo dat quod non habet. You cannot give what you do not have. Hindi mo maibibigay ang hindi sa iyo. This maxim forcefully applies in these consolidated petitions and petitions-in-intervention for mandamus and prohibition which in the main seek the nullification of the Memorandum of Agreement on Ancestral Domain (MOA-AD) entered into between the Government of the Republic of the Philippines (GRP Panel) and the Moro Islamic Liberation Front (MILF). The issues may be compressed as follows: (1) whether the petitions and petitions-in-intervention have become moot due to supervening events; and (2) whether the MOA-AD is constitutional.

I. The petitions and petitions-in-intervention have become moot due to supervening events. However, they should be decided given the exceptional circumstances, following well known precedents.

During the August 29, 2008 oral arguments before the Court, the Solicitor General manifested that the MOA-AD will not be signed “in its present form or in any other form.”1 The August 28, 2008 memorandum of the Executive Secretary also says that “the government will not sign” the MOA-AD.2 Due to these statements, the petitions and petitions-in-intervention have clearly become moot. 1 TSN, August 29, 2008, p. 14. “The Executive Department has decided and [is] stating for the record that the MOA-AD will not be signed in its present form or in any other form.” 2 Annex “A”; Compliance of the Office of the Solicitor General September 1, 2008. “The MOA that was originally presented was a step in crafting a final peace agreement. By design, any MOA as part of a final peace agreement undergo a thorough review as part of our constitutional PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 299

Be that as it may, the Court is not precluded from passing judgment on them. It is hornbook doctrine that courts will decide cases, otherwise moot, when (1) there is a grave violation of the Constitution; (2) the exceptional character of the situation and the paramount public interest involved demand; (3) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and (4) the case is capable of repetition yet evading review.3 Let me cite a few examples. In Javier v. Commission on Elections,4 petitioner Evelio B. Javier was assassinated on February 11, 1986 before his petition to the Court could be decided. In his petition, Javier argued that the proclamation of his rival, Arturo F. Pacificador, was void because it was made only by a division and not by the Commission on Elections en banc as required by the 1973 Constitution. The new Solicitor General moved for the dismissal

processes since the MOAs will be part of the enabling law by Congress and a plebiscite to implement the entire agreement. The action by the Supreme Court is consistent with that process. Moving forward, we are committed to securing an agreement that is both constitutional and equitable because that is the only way that long lasting peace can be assured. “No matter what the Supreme Court ultimately decides the government will not sign the MOA. In light of the recent violent incidents committed by MILF Lawless Goups, the President has refocused all peace talks from one that is centered on dialogues with rebels to one authentic dialogues with the communities, with DDR as the context of our engagements with all armed groups.” (Emphasis supplied) 3 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756; Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736; Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577; Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 277 SCRA 409. 4 G.R. Nos. L-68379–81, September 22, 1986, 144 SCRA 194. 300 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I of the petition on the ground of mootness in view of supervening events. The Court refused, saying: The abolition of the Batasang 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. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in the quest of law but we must also give him justice. The two are not always the same. There are times we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint on the future.5 (Emphasis supplied) In Salonga v. Cruz-Paño,6 the Court had already deliberated on the case, a consensus on the judgment of the Court had been reached, and a draft ponencia was circulating for concurrences and separate opinions, if any. However, on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against petitioner. In accordance with the instructions of the Minister of Justice, the prosecution reevaluated its evidence and decided the exclusion of petitioner as one of the accused in the information filed under the questioned resolution.

5 Javier v. Commission on Elections, Id. at 197–198. 6 G.R. No. L-59524, February 18, 1985, 134 SCRA 438. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 301

However, this did not prevent the Court from deciding the merits of the petition. In doing so, the Court reasoned that “[t]he setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court’s function.” It “also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees.” 7 Similarly, Dela Camara v. Enage,8 Gonzales v. Marcos,9 and Aquino, Jr., v. Enrile10 were decided under the same aegis. In David v. Macapagal-Arroyo,11 the Solicitor General 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. The Court was not convinced, saying that “[t]he “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case.”12 It then proceeded to declare unconstitutional major parts of the declaration of state of national emergency by the President. Just recently, in Manalo v. Calderon,13 “[n]otwithstanding the mootness of the issues on restrictive custody and monitoring of movements of petitioners,” the Court opted to resolve the petition for habeas corpus, due to “(a) the paramount public interest involved, (b) their susceptibility of 7 Salonga v. Cruz-Paño, Id. at 463. (Emphasis supplied.) 8 G.R. No. L-32951–2, September 17, 1971, 41 SCRA 1. 9 G.R. No. L-31685, July 31, 1975, 65 SCRA 624. 10 G.R. No. L-35546, September 17, 1974, 59 SCRA 183. 11 G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160. 12 David v. Macapagal-Arroyo, Id. at 214. (Emphasis supplied.) 13 G.R. No. 178920, October 15, 2007. 302 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

recurring yet evading review, and (c) the imperative need to educate the police community on the matter.” The 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.

II. The MOA-AD is unconstitutional.

The GRP Panel went beyond their marching orders from the President. The March 1, 2001 Memorandum of Instructions from the President,14 which prescribes the guidelines for the GRP Panel in negotiating with the MILF, partly states: 1. The negotiations shall be conducted in accordance with the Mandates of the Philippine Constitution, the Rule of Law, and the principles of the sovereignty and territorial integrity of the Republic of the Philippines. 2. The negotiation process shall be pursued in line with the national Comprehensive Peace Process, and shall seek the principled and peace resolution of the armed conflict, with neither blame nor surrender, but with dignity for all concerned. 3. The objective of the GPNP is to attain a peace settlement that shall:

14 Paragraph 1 of the Memorandum of Instructions from the President dated March 1, 2001 is reiterated in toto in the Memorandum of Instructions from the President dated September 8, 2003. Respondent Esperon admitted this when he stated during the oral arguments that “indeed the Memorandum of Instructions was issued on March 1, 2001 to the Presidential Adviser, to the Chairman of the Peace Negotiating Panel thru the Presidential Adviser on the Peace Process. And since then, it has also been revised on September 8, 2003 containing the same paragraph one which reads that the negotiation shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the Principles of Sovereignty and Territorial Integrity of the Republic of the Philippines.” (TSN, August 15, 2008, pp. 342–343). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 303

a. Contribute to the resolution of the root cause of the armed conflict, and to societal reform, particularly in Southern Philippines; b. Help attain a lasting peace and comprehensive stability in Southern Philippines under a meaningful program of autonomy for Filipino Muslims, consistent with the Peace Agreement entered into by the GRP and the MNLF on September 2, 1996; and c. Contribute to reconciliation and reconstruction in Southern Philippines. 4. The general approach to the negotiations shall include the following: a. Seeking a middle ground between the aspirations of the MILF and the political, social and economic objectives of the Philippine Government; b. Coordinated Third Party facilitation, where needed; c. Consultation with affected communities and sectors. (Emphasis supplied) In an apparent compliance with the Directive of the President, the MOA-AD mentions the following documents as terms of reference, to wit: 1. The Agreement for General Cessation of Hostilities dated July 18, 1997 Between the GRP and the MILF, and its Implementing Administrative and Operational Guidelines; 2. The General Framework of Agreement of Intent Between the GRP and the MILF dated August 27, 1998; 3. The Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF dated March 24, 2001; 4. The Tripoli Agreement on Peace Between the GRP and the MILF dated June 22, 2001; 5. The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 304 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996; 6. Republic Act No. 6734, as amended by RA No. 9054, otherwise known as “An Act to Strengthen and Expand the Autonomous Region in Muslim Mindanao (ARMM)”; 7. ILO Convention No. 169, in correlation to the UN Declaration on the Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter, the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), and internationally recognized human rights instruments; and 8. 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 partakes the nature of a treaty device. For the purpose of this Agreement, a “treaty” is defined as any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the Agreement. Curiously missing in the enumeration, however, is the Constitution. The omission could only mean that the parties intended the MOA-AD not to be bound by the fundamental law. The Constitution is supposed to be the one to conform to the MOA-AD, and not the other way around.15 There can be no doubt as to the marching orders by the President. In negotiating with the MILF, the GRP Panel should use the Constitution as the parameter. Too, the preservation of the territorial integrity of the Republic of the Philippines should 15 Noteworthy is the statement of Al Haj Murad Ebrahim, the Chairman of the MILF, thus: “It may be beyond the Constitution but the Constitution can be amended and revised to accommodate the agreement. What is important is during the amendment, it will not derogate or water down the agreement because we have worked this out for more than 10 years now. (visited September 25, 2008). (Emphasis supplied) PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 305 be maintained at all times. The GRP Panel, however, appears to have failed to follow those instructions. The commitment of the GRP Panel to the MILF to change the Constitution to conform to the MOA-AD violates the doctrine of separation of powers. Under the present constitutional scheme, the President is a mere bystander as far as the process of constitutional amendment or revision is concerned. The President is deprived of any participation because the Constitution16 only allows three political agents, namely: (1) the Congress, upon a vote of three-

16 CONSTITUTION (1987), Article XVII, Section 1. Any amendment to, or revision of, this Constitution may be proposed by: 1. The Congress, upon a vote of three-fourths of all its Members; or 2. A constitutional convention.

SEC. 2. Amendments to this Constitution may likewise be 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. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right.

SEC. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

SEC. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the approval of such amendment or revision. 306 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I fourths of all its members; (2) a constitutional convention;17 and (3) the people through initiative upon a petition of at least twelve (12) 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. Thus, since the President is bereft of any power in effecting constitutional change, the GRP Panel, who acts under the imprimatur of the President, cannot commit to the MILF that the Constitution will be amended or revised in order to suit the MOA-AD. That would be a violation of the doctrine of separation of powers. Nemo potest facere per alium quod non potest facere per directum. No 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. The MOA-AD contains numerous provisions that appear unconstitutional. Respondents claim that the contents of the MOA-AD are mere concession points for further negotiations. The MILF, however, publicly announced that the MOA-AD is already a “done deal” and its signing a mere formality.18 I find both claims of respondents and the MILF difficult to swallow. Neither position is acceptable. The GRP Panel has not presented any proof to buttress its point that, indeed, the parties intended the MOA-AD to be mere concession points for further negotiations. The MILF have not also shown proof to

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the certification by the Commission on Elections of the sufficiency of the petition.

17 CONSTITUTION (1987), Article XVII, Section 3. “The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.” 18 (visited September 27, 2008). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 307

support its claim. In this regard, the MOA-AD should be interpreted according to its face value. Having said that, let me point out the defects of the MOA- AD. First. The MOA-AD creates a new political subdivision, the so-called Bangsamoro Juridical Entity (BJE). This is not permitted by the Constitution, which limits the political subdivisions of the Republic of the Philippines into provinces, cities, municipalities, barangays and autonomous regions.19 Worse, the BJE also trenches on the national sovereignty and territorial integrity of the Republic of the Philippines.20 This is so because pursuant to the MOA-AD: (1) The Bangsamoro homeland and historic territory is clearly demarcated;21 (2) The BJE is given the authority and jurisdiction over the Ancestral Domain and Ancestral lands. This includes both alienable and non-alienable lands encompassed within their homeland and

19 CONSTITUTION (1987), Article X, Section 1. “The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.”

20 CONSTITUTION (1987), Article X, Section 15. “There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras 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 framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.” 21 MOA-AD, Territory, paragraph 1. “The Bangsamoro 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. x x x.” 308 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I ancestral territory,22 specified “internal waters”23 as well as “territorial waters”;24 (3) The declared ultimate objective of

22 Id., Concepts and Principles, paragraph 6. “Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral territory, as well as the delineation of ancestral domain/lands of the Bangsamoro people located therein.” 23 Id., Territory, paragraph 2(f). “The BJE shall have jurisdiction over the management, conservation, development, protection, utilization and disposition of all natural resources, living and non-living, within its internal waters extending 15 kilometers from the coastline of the BJE area.” 24 Id., Territory, paragraph 2(g). “(1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to the Republic of the Philippines (RP) baselines south east and south west of mainland Mindanao. Beyond the 15 kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and all natural resources, living and non-living contained therein. The details of such management of the Territorial Waters shall be provided in an agreement to be entered into by the Parties. “(2) The boundaries of the territorial waters shall stretch beyond the 15-km. BJE internal waters up to the Central Government’s baselines under existing laws. In the southern and eastern part of the BJE, it shall be demarcated by a line drawn from the Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of the Philippines. On the northwestern part, it shall be demarcated by a line drawn from Little Sta. Cruz Island, Zamboanga City, up to Naris Point, Bataraza, Palawan. On the western part of Palawan, it shall be demarcated by a line drawn from the boundary of Bataraza and Rizal up to the straight baselines of the Philippines. “The final demarcation shall be determined by a joint technical body composed of duly-designated representatives of both Parties, in coordination with the appropriate Central Government agency in accordance with the above guidelines.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 309

entrenching the Bangsamoro 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. The Parties respect the freedom of choice of the indigenous peoples;”25 and (4) The BJE is empowered “to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society, x x x.”26 Otherwise stated, respondents agreed to create a BJE out of the national territory of the Republic, with a distinct and separate system of government from the Republic of the Philippines.27 Notably, the United Nations Declaration on the Rights of Indigenous Peoples, while recognizing the rights of indigenous peoples to self-determination, does not give them the right to undermine the territorial integrity of a State.28 25 Id., Governance, paragraph 2. 26 Id., paragraph 8. 27 Id., Concepts and Principles, paragraph 4. “Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense. As a domestic community distinct from the rest of the national communities, they have a definite historic homeland. They are the “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations. The Parties concede that the ultimate objective of entrenching the Bangsamoro 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. 28 United Nations Declaration on the Rights of Indigenous Peoples, Article 46(1) “Nothing in this Declaration may be interpreted as 310 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Second. The creation of the BJE is prohibited even assuming that the MOA-AD only attempts to create the BJE as an autonomous region. Only Congress is empowered to create an autonomous region.29 In fact, RA Nos. 673430 and 9054,31 the laws creating and expanding the ARMM, have already been passed by Congress. As a result of these Organic Acts, the provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi and the City of Marawi voted implying for any State, people, group or person any right to engage in any activity to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. (Emphasis supplied)

29 CONSTITUTION (1987), Article X, Section 18. “The Congress 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. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. “The 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.” 30 Passed on August 1, 1989. “An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao.” 31 Passed on March 31, 2001. “An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 7634, Entitled “An Act Providing for the Autonomous Region in Muslim Mindanao, As Amended.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 311

to comprise the ARMM territory under the control of the Regional Government of the ARMM. In the case of the MOA- AD, no implementing law is provided to implement its terms. What it purports to do, instead, is to provide for structures of government within the MOA-AD itself. It also obligates the GRP Panel to “conduct and deliver” a plebiscite “within 12 months following the signing of the MOA-AD.”32 Third. The MOA-AD creates the Bangsamoro Homeland as an ancestral domain. However, there is non-compliance with the procedure laid down under RA No. 8371, otherwise known as the Indigenous Peoples Rights Act (IPRA). True, Article II, Section 22 of the 1987 Constitution recognizes the rights of all indigenous peoples.33 This, however, cannot be used in the MOA-AD as a blanket authority to claim, without sufficient proof, a territory spanning an entire geographical region, the entire Mindanao-Sulu-Palawan geographic region.34

32 MOA, Territory, paragraph 2(d). “Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within 12 months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the “Annex”). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavour to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within 15 months from the signing of the MOA-AD.” 33 “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.” 34 MOA-AD, Concepts and Principles, paragraph 2. “It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s 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 Bangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by 312 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Indeed, Chapter VIII of the IPRA provides for stringent requirements and strict process of delineation for recognition of ancestral domains, thus:

SEC. 51. Delineation and Recognition of Ancestral Domains. Self delineation shall be the guiding principle in the identification and delineation of ancestral domains. As such, the ICCs/IPs concerned shall have a decisive role in all the activities pertinent thereto. The Sworn Statement of the Elders as to the scope of the territories and agreements/pacts made with neighboring ICCs/IPs, if any, will be essential to the determination of these traditional territories. The Government shall take the necessary steps to identify lands which the ICCs/ IPs concerned traditionally occupy and guarantee effective protection of their rights of ownership and possession thereto. Measures shall be taken in appropriate cases to safeguard the right of the ICCs/IPs concerned to land which they may no longer be exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities, particularly of ICCs/IPs who are still nomadic and/or shifting cultivators.

SEC. 52. Delineation Process. – The identification and delineation of ancestral domains shall be done in accordance with the following procedures: their ancestors since time immemorial, and being the first politically organized dominant occupants.” Id., paragraph 3. “Both Parties acknowledge 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. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 313 x x x x (b) Petition for Delineation. – The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or though a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs. (c) Delineation Proper. – The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation 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 Ancestral Domain Claims 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 ICCs/IPs in the concept of owners which shall be any one of the following authentic documents: 1) Written accounts of the ICCs/IPs customs and traditions; 2) Written accounts of the ICCs/IPs political structure and institution; 3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages; 4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs; 5) Survey plans and sketch maps; 6) Anthropological data; 7) Genealogical surveys; 314 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

8) Pictures and descriptive histories of traditional communal forests and hunting grounds; 9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and 10) Write-ups of names and places derived from the native dialect of the community. (e) Preparation of Maps. – On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein. (f) Report of Investigation and Other Documents. – A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP. (g) Notice and Publication. – A copy of each document, including a translation in the native language of the ICCs/ IPs concerned shall be posted in a prominent place therein for at least 15 days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two consecutive weeks to allow other claimants to file opposition thereto within 15 days from date of such publication: Provided, That in areas where no such newspaper exist, broadcasting in a radio station will be a valid substitute; Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available. (h) Endorsement to NCIP. – Within 15 days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence; Provided, That the Ancestral Domains Office shall reject any claim that is PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 315

deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP. Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office 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. The MOA-AD is problematic when read in conjunction with the IPRA because it does not present any proof or specific reference that all the territories it enumerates accurately represent the “ancestral domains” of the Bangsamoro Homeland. The MOA-AD assumes that these territories are included in the Bangsamoro Homeland as ancestral domains, without proof or identification of native title or other claim of ownership to all the affected areas. Section 3(g) of the IPRA35 also requires that there be a “free and informed prior consent” by the indigenous peoples concerned to be exercised through consultations before any decision relating to their ancestral domain is made. This rule not only guarantees the right to information36 of the people in 35 IPRA, Section 3(g). “Free and Prior Informed Consent – as used in this Act shall mean the consensus of all members of the ICCs/IPs to; be determined in accordance with their respective customary laws and practices, free from any external 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.”

36 CONSTITUTION (1987), Article 3, Section 7. “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.” 316 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

these areas, but also the right of the indigenous peoples to “free and informed prior consent” as an element of due process.37 Obviously, respondents did not conduct the required consultation before negotiating the terms of the MOA-AD. Otherwise, no petitions and petitions-in-intervention would have been filed in the first place. Fourth. Under the MOA-AD, the BJE is vested with jurisdiction, powers and authority over land use, development, utilization, disposition and exploitation of natural resources within the Bangsamoro Homeland.38 In doing so, respondents in effect surrendered to the BJE ownership and gave it full

37 CONSTITUTION (1987), Article 3, Section 1. “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” 38 MOA-AD, Resources, paragraph (1). “The BJE is empowered with authority and responsibility for the land use, development, conservation and disposition of the natural resources within the homeland. Upon entrenchment of the BJE, the land tenure and use of such resources and wealth must reinforce their economic self- sufficiency. Among the purposes or measures to make progress more rapid are: a. Entry into joint development, utilization, and exploitation of natural resources designed as commons or shared resources, which is tied up to the full setting of appropriate institution, particularly affecting strategic minerals; b. Stimulation of local economy by a range of mechanism, in particular the need to address unemployment and improvement of living conditions for the population in the BJE; c. Intensification of measures needed to uproot the cause of poverty in the BJE through responsible harnessing and development of its natural resources; and d. Undertaking program review of public services, industrial or trade-related and agrarian-related issues in situations of different sectors of the society in the BJE, which acquire communal character deriving from the special nature of their industry. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 317 control and supervision over the exploration, development, utilization over the natural resources which belong to the State. This is in clear contravention of the Regalian Doctrine now expressed under Article XII, Section 2 of the 1987 Constitution, thus: All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception

Id., paragraph 2. “The Bangsamoro People through their appropriate juridical entity shall, among others, exercise power or authority over the natural resources within its territorial jurisdiction: a. To explore, exploit, use or utilize and develop their ancestral domain and ancestral lands within their territorial jurisdiction, inclusive of their right of occupation, possession, conservation, and exploitation of all natural resources found therein; b. To conserve and protect the human and natural environment for their sustainable and beneficial enjoyment and their posterity; c. To utilize, develop, and exploit its natural resources found in their ancestral domain or enter into a joint development, utilization, and exploitation of natural resources, specifically on strategic minerals, designed as commons or shared resources, which is tied up to the final setting of appropriate institution; d. To revoke or grant forest concessions, timber license, contracts or agreements in the utilization and exploitation 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 BJE; e. To enact agrarian laws and programs suitable to the special circumstances of the Bangsamoro people prevailing in their ancestral lands within the established territorial boundaries of the Bangsamoro homeland and ancestral territory within the competence of the BJE; and 318 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding 25 years, renewable for not more than 25 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. The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the f. To use such natural resources and wealth to reinforce their economic self-sufficiency. Id., paragraph 5. “Jurisdiction and control over, and the right of exploring for, exploiting, 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 BJE as the party having control within its territorial jurisdiction, provided that in times of national emergency, when public interest so requires, the Central Government may, during the emergency, for a fixed period and under reasonable terms as may be agreed by both Parties, temporarily assume or direct the operations of such strategic resources.” PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 319

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. The President shall notify the Congress of every contract entered into in accordance with this provision, within 30 days from its execution. Fifth. The MOA-AD also grants to the BJE powers to enter into any economic cooperation and trade relations with foreign countries. It compels the Republic of the Philippines to ensure the BJE’s 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.39 Thus, by 39 MOA-AD, Resources, paragraph 4. “The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines; provided, further that it shall remain the duty and obligation of the Central Government to take charge of external defense. Without prejudice to the right of the Bangsamoro juridical entity to enter into agreement and environmental cooperation with any friendly country affecting its jurisdiction, it shall include: a. The option to establish and open Bangsamoro trade missions in foreign countries with which it has economic cooperation agreements; and b. The elements bearing in mind the mutual benefits derived from Philippine archipelagic status and security. And, in furtherance thereto, the Central Government shall take necessary steps to ensure the BJE’s participation in international meetings and events, e.g., ASEAN meetings and other specialized agencies of the United Nations. This shall entitle the BJE’s participation in Philippine official missions and delegations that are engaged in the negotiation of border agreements or protocols for environmental protection, equitable 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. 320 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I assenting to install an intra sovereign political subdivision independent of the single sovereign state that is the Republic of the Philippines, respondents violated not only the Constitution, Article V, Section 2 of RA No. 6734,40 but also the unitary system of government of the Republic of the Philippines.

40 Republic Act No. 6734, Article V, Section 2. The Autonomous Region is a corporate entity with jurisdiction in all matters devolved to it by the Constitution and this Organic Act as herein enumerated: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family and property relations; (5) Regional, urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; (9) Powers, functions and responsibilities now being exercised by the departments of the National Government except: (a) Foreign affairs; (b) National defense and security; (c) Postal service; (d) Coinage, and fiscal and monetary policies; (e) Administration of justice; (f) Quarantine; (g) Customs and tariff; (h) Citizenship; (i) Naturalization, immigration and deportation; (j) General auditing, civil service and elections; (k) Foreign trade; PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 321

Sixth. Article 1, Section 1 of the 1987 Constitution provides: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and 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. Without the benefit of any factual determination, the MOA- AD dismembers parts of Mindanao, turning it into a geographical dalmatian. It creates a Bangsamoro Homeland with a specified land mass, maritime, terrestrial, fluvial and alluvial dominions, (with definite internal41 and territorial42 waters), aerial domain, (l) Maritime, land and air transportation and communications that affect areas outside the Autonomous Region; and (m) Patents, trademarks, trade names, and copyrights; and (10) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the Region. 41 MOA-AD, Territory, paragraph 2(f). “The BJE shall have jurisdiction over the management, conservation, development, protection, utilization and disposition of all natural resources, living and non-living, within its internal waters extending 15 kilometers from the coastline of the BJE area.” 42 Id., paragraph 2(g). “(1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to the Republic of the Philippines (RP) baselines south east and south west of mainland Mindanao. Beyond the 15 kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and all natural resources, living and non-living contained therein. The details of such management of the Territorial Waters shall be provided in an agreement to be entered into by the Parties.” 322 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

atmospheric space,43 and even distinct “territorial waters” within the RP baselines.44 “(2) The boundaries of the territorial waters shall stretch beyond the 15-km. BJE internal waters up to the Central Government’s baselines under existing laws. In the southern and eastern part of the BJE, it shall be demarcated by a line drawn from the Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of the Philippines. On the northwestern part, it shall be demarcated by a line drawn from Little Sta. Cruz Island, Zamboanga City, up to Naris Point, Bataraza, Palawan. On the western part of Palawan, it shall be demarcated by a line drawn from the boundary of Bataraza and Rizal up to the straight baselines of the Philippines. “The final demarcation shall be determined by a joint technical body composed of duly-designated representatives of both Parties, in coordination with the appropriate Central Government agency in accordance with the above guidelines.” 43 Id., paragraph 1. “1. The Bangsamoro 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. x x x.” 44 Id., paragraph 2(g). “(1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to the Republic of the Philippines (RP) baselines south east and south west of mainland Mindanao. Beyond the 15 kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and all natural resources, living and non- living contained therein. The details of such management of the Territorial Waters shall be provided in an agreement to be entered into by the Parties. “(2) The boundaries of the territorial waters shall stretch beyond the 15-km. BJE internal waters up to the Central Government’s baselines under existing laws. In the southern and eastern part of the BJE, it shall be demarcated by a line drawn from the Maguling Point, Palimbang, Province of Sultan Kudarat up to the straight baselines of the Philippines. On the northwestern part, it shall be demarcated by a line drawn from Little Sta. Cruz Island, Zamboanga PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 323

Seventh. The MOA-AD grants to the BJE plenary power to undo executive acts and delegate to the BJE the authority to revoke existing proclamations, issuances, policies, rules and guidelines, forest concessions, timber licenses, contracts or agreements in the utilization of natural resources, mining concessions, land tenure instruments.45 This constitutes an undue delegation of executive power. The President may delegate its executive power only to local government units or an administrative body attached to the executive department.46 The delegation of power to the BJE, on the other hand, is delegation of executive power to an entirely different juridical entity that is not under its supervision or control. That is impermissible. Eighth. The MOA-AD empowers the BJE to build, develop, and maintain its own institutions. This includes civil service, City, up to Naris Point, Bataraza, Palawan. On the western part of Palawan, it shall be demarcated by a line drawn from the boundary of Bataraza and Rizal up to the straight baselines of the Philippines. “The final demarcation shall be determined by a joint technical body composed of duly-designated representatives of both Parties, in coordination with the appropriate Central Government agency in accordance with the above guidelines.” 45 MOA-AD, Resources, paragraph 8. “All proclamations, issuances, policies, rules and guidelines declaring old growth or natural forests and all watersheds within the BJE as forest reserves shall continue to remain in force until otherwise modified, revised or superseded by subsequent policies, rules and regulations issued by the competent authority under the BJE. Id., paragraph 9. “Forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments of any kind or nature whatsoever granted by the Philippine Government including those issued by the present ARMM shall continue to operate from the date of formal entrenchment of the BJE unless otherwise expired, reviewed, modified and/or cancelled by the latter.” 46 Nachura, Antonio B., Outline in Political Law, 2002 ed., p. 51. 324 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

electoral, financial and banking institutions, education, legislation, legal, economic, police, internal security force, and judicial system.47 This is anathema to several provisions of the Constitution, namely: (1) the authority of the Commission on Elections to administer all election laws in the Philippines;48 (2) that there shall only be one police force, national in scope to be administered and controlled by the National Police Commission;49 (3) that the defense of the Republic shall belong exclusively to the Armed Forces of the Philippines;50 (4) that judicial power shall be vested in one Supreme Court and in such other inferior courts as may be established by law;51 (5) that there shall only be one independent central monetary 47 MOA, Governance, paragraph 8. “The Parties agree that the BJE shall be empowered to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society, the details of which shall be discussed in the negotiation of the Comprehensive Compact.”

48 CONSTITUTION (1987), Article IX(C), Section 2(1). “The Commission on Elections shall exercise the following powers and functions: 1. Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.”

49 CONSTITUTION (1987), Article XVI, Section 6. “The 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. The authority of local executives over the police units in their jurisdiction shall be provided by law.”

50 CONSTITUTION (1987), Article XVI, Section 4. “The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve as may be provided by law. It shall keep a regular force necessary for the security of the State.”

51 CONSTITUTION (1987), Article VIII, Section 1. “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J REYES, SEPARATE OPINION 325

authority, the Bangko Sentral ng Pilipinas;52 and (6) that there shall be one independent economic planning agency.53 All told, respondents appear to have committed grave abuse of discretion in negotiating and initialing the MOA-AD. Grave abuse of discretion has been traditionally understood as implying such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner.54 The and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

52 CONSTITUTION (1987), Article XII, Section 20. “The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions. “Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws, shall function as the central monetary authority.”

53 CONSTITUTION (1987), Article XII, Section 9. “The Congress 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 Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government.” 54 Esguerra v. Court of Appeals, G.R. No. 119310, February 3, 1997, 267 SCRA 380, citing Alafriz v. Noble, 72 Phil. 278, 280 (1941); Leung Ben v. O’Brien, 38 Phil. 182 (1918); Salvador Campos y Cia v. 326 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I definition has been expanded because now, grave abuse of discretion exists when there is a contravention of the Constitution, the law and jurisprudence.55

NEGOTIATE WITHIN THE CONSTITUTIONAL BOUNDS

During the American Civil War, the Union had to win the Confederates and bring them back to the fold. It was the bloodiest war the United States ever had. But 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 Home. It is our solemn duty to avert that war. The aborted MOA-AD is a setback to the government. But the setback is only temporary, not a permanent one. The path to peace is long. But it can be travelled. On one hand, the government should be commended in its effort to bring lasting peace to the South. On 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 Constitution. WHER[E]FORE, I vote to GRANT the petitions and petitions- in-intervention and to strike down the MOA-AD as UNCONSTITUTIONAL.

Del Rosario, 41 Phil. 45 (1920); Abad Santos v. Province of Tarlac, 38 Off. Gaz. 830; Tavera Luna, Inc. v. Nable, 38 Off. Gaz. 62; San Sebastian College v. Court of Appeals, G.R. No. 84401, May 15, 1991, 197 SCRA 138; Sinon v. Civil Service Commission, G.R. No. 101251, November 5, 1992, 215 SCRA 410; Bustamante v. Commission on Audit, G.R. No. 103309, November 27, 1992, 216 SCRA 134, 136; Zarate v. Olegario, G.R. No. 90655, October 7, 1996, 263 SCRA 1. 55 G.R. Nos. 147062–64, December 14, 2001, 372 SCRA 462, 493. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J LEONARDO-DE CASTRO, CONCURRING AND DISSENTING OPINION 327

SEPARATE CONCURRING AND DISSENTING OPINION

Leonardo-De Castro, J.:

I vote to consider the cases moot and academic considering the manifestation in the Memorandum, dated September 24, 2008, filed by the Office of the Solicitor General (OSG) that: “x x x The Executive Department has repeatedly and categorically stated that the MOA-AD will not be signed in its present form or in any other form. The Chief Executive has in fact gone to the extent of dissolving the Government of the Republic of the Philippines (GRP) Panel and has decided to take on a different tack and launch talks, no longer with rebels or rebel groups, but with more peace-loving community-based groups. x x x”1 This development renders unnecessary a detailed analysis of each of the stipulations contained in the said MOA-AD, which have grave constitutional implications on the sovereignty, territorial integrity and constitutional processes of the Republic of the Philippines, all of which are non-negotiable when viewed in the context of the nature of the internal conflict it seeks to address and the state of our nation today. I believe this is a prudent move on the part of the Executive Department. By 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 MOA-AD. Consequently, it is beyond the authority of any negotiating panel to commit the implementation of any consensus point or a legal framework which is inconsistent with the present Constitution or existing statutes. Moreover, our constitutional processes are well-defined by various provisions of the Constitution. The establishment of a political and territorial “space” under a so-called Bangsamoro Juridical Entity (BJE) is nowhere to be found in the 1987 1 OSG Memorandum (September 24, 2008), pp. 7–8. 328 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Constitution, which provides for the country’s territorial and political subdivisions as follows: The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.2 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. The Constitution is explicit in this regard, to wit: The Congress 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. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this constitution and national law. The 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.3 (Emphasis supplied) If the establishment of autonomy requires the joint participation of Congress, the President, and of the people in the area affected, from the inception of the process of creation of an autonomous region, with more reason, the creation of the BJE – 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

2 CONSTITUTION (1987), Article X, Section 2.

3 CONSTITUTION (1987), Article X, Section 18. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J LEONARDO-DE CASTRO, CONCURRING AND DISSENTING OPINION 329 participation of Congress and consultations with the people, residing not only in the area to be placed under the BJE but also in the rest of our country. Even with the participation of Congress and the consultation with stakeholders, the process at the onset must conform and explicitly be subject to our Constitution. This is specially important as the unsigned MOA-AD stipulates a definite framework that threatens to erase, through the “policies, rules and regulations” and basic law of the BJE, the objective existence of over 400 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 Constitution 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 Comprehensive Compact. To my mind, this alarming possibility contemplated in the MOA-AD may be the cause of chaos and even greater strife for our brothers in the south, rather than bring about the intended peace. 330 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

CONCURRING AND DISSENTING OPINION

Brion, J.:

The Petitions for Mandamus

I concur with the ponencia’s conclusion that the mandamus aspect of the present petitions has been rendered moot when the respondents provided this Court and the petitioners with the official copy of the final draft of the Memorandum of Agreement on Ancestral Domain (MOA-AD).1

The Petitions for Prohibition

I likewise concur with the implied conclusion that the “non- signing of the MOA-AD and the eventual dissolution of the Government of the Republic of the Philippines (GRP) panel mooted the prohibition aspect of the petitions,” but disagree that the exception to the “moot and academic” principle should apply. The ponencia alternatively claims that the petitions have not been mooted. I likewise dissent from this conclusion. a. The Ponencia and the Moot and Academic Principle. As basis for its conclusion, the ponencia cites David v. Macapagal-Arroyo2 for its holding that “‘the moot and academic’ principle not being a magical formula that automatically dissuades courts in resolving a case, it [the Court] will decide cases, otherwise moot and academic, if it feels that (a) there is a grave violation of the Constitution;3 (b) the situation is of exceptional character and paramount public interest is involved;4 (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the

1 Respondents’ Compliance dated August 7, 2008. 2 G.R. 171396, May 3, 2006, 489 SCRA 161. 3 Citing Batangas v. Romulo, 429 SCRA 736 (2004). 4 Citing Lacson v. Perez, 357 SCRA 756 (2001). PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 331 bar and the public;5 and (d) the case is capable of repetition yet evading review.”6 In further support of its position on the mootness issue, the ponencia additionally cites the American ruling that “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 seeks damages or prays for injunctive relief against the possible recurrence of the violation.”7 b. The Context of the “Moot and Academic” Principle. The cited David v. Macapagal-Arroyo defines a “moot and academic” case to be “one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value.” It goes on to state that “generally, courts decline jurisdiction over such cases and dismiss it on the ground of mootness.”8 This pronouncement traces its current roots from the express constitutional rule under the second paragraph of Section 1, Article VIII of the 1987 Constitution that “[j]udicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable x x x.” This rule, which can conveniently be called the traditional concept of judicial power, has been expanded under the 1987 Constitution to include the power “to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” Whether under the traditional or the expanded concept, judicial power must be based on an actual justiciable controversy at whose core is the existence of a case involving rights which 5 Citing Province of Batangas, supra note 3. 6 Citing Albana v. Comelec, 435 SCRA 98 (2004); Acop v. Guingona, 383 SCRA 577 (2002); Sanlakas v. Executive Secretary, 421 SCRA 656 (2004). 7 Ponencia, p. 32. 8 Supra note 2, at p. 214 332 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I are legally demandable and enforceable. Without this feature, courts have no jurisdiction to act. Even a petition for declaratory relief9 – a petition outside the original jurisdiction of this Court to entertain – must involve an actual controversy that is ripe for adjudication.10 In light of these requirements, any exception that this Court has recognized to the rule on mootness (as expressed, for example, in the cited David v. Macapagal-Arroyo) is justified only by the implied recognition that a continuing controversy exists. Specifically involved in the exercise of judicial power in the present petitions is the Court’s 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.11 A first requisite for judicial review is that there be an “actual case” calling for the exercise of judicial power. Fr. Joaquin Bernas, S.J., an eminent constitutional law expert, comments in this regard that – This is a manifestation of the commitment to the adversarial system. Hence, the Court 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. Nor will the Court normally entertain a petition touching on an issue that has become moot because then there would no longer be a ‘flesh and blood’ case for the Court to resolve.” [Citations deleted, emphasis supplied.]12

9 The cause of action in the present petition filed by the City of Iligan in G.R. No. 183893. 10 See: Delumen v. Republic, 94 Phil. 287 (1954); Allied Broadcasting Center, Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782; Mangahas v. Hon. Judge Paredes, G.R. No. 157866, February 14, 2007, 515 SCRA 709.

11 CONSTITUTION, Article VIII, Section 4(2). 12 The 1987 Constitution of the Republic of the Philippines, A Commentary (2003 ed.), p. 938. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 333

Other than the rule on actual case and standing (which aspect this separate opinion does not cover), jurisprudence holds that this Court will not touch upon the issue of constitutionality unless it is unavoidable or is the very lis mota.13 As will be discussed in refuting the ponencia’s various positions, this rule finds special application in the present case in light of the political sensitivity of the peace talks with the MILF and the issues it has placed on the agenda, namely, peace and order in Mindanao and the MILF’s aspirations for freedom. My disagreement with the ponencia on the application of the exceptions to the mootness principle of David v. Macapagal- Arroyo is essentially based on how the mootness principle and its exceptions should be applied. While the mootness principle is “not a magical formula that automatically dissuades courts in resolving cases,” so also should the exceptions not be considered magical formulas that should apply when the Court 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 exceptions should be subjected to a strict test because it is a deviation from the general rule. The Court should carefully test the exceptions to be applied from the perspectives both of legality and practical effects, and show by these standards that the issue absolutely requires to be resolved. I do not believe that the exceptions were so tested and considered under the ponencia. c. The Ponencia’s Positions Refuted i. Mootness and this Court’s TRO A first point the ponencia stresses with preeminence in its discussion of the mootness issue is the observation that “the signing of the MOA-AD did not push through due to the court’s issuance of a Temporary Restraining Order.” The implication, it seems, is that the intervening events subsequent to the filing of the petition and the issuance of the temporary restraining

13 Lis mota means the cause of the suit or action, 4 Campb.; Moldex Realty, Inc. v. HLURB, G.R. No. 149719, June 21, 200[7], 525 SCRA 198. 334 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I order (TRO) – specifically, the respondents’ commitment that the MOA-AD shall not be signed in its present form or in any other form,14 and the President’s act of dissolving the GRP negotiating panel15 – had no effect on the petitions because the signing of the MOA-AD had by then been stopped by our TRO. I find this a disturbing implication as the petitions for prohibition presented live controversies up to and beyond the issuance of this Court’s TRO; they were rendered moot only by the above mentioned intervening events. By these intervening and unequivocal acts, the respondents effectively acknowledged that the MOA-AD should indeed not be signed as demanded by the petition. Thus, the TRO from this Court only immediately ensured that the MOA-AD would not be signed until this Court had spoken on the constitutional and statutory grounds cited by the petitions, but it was the respondents’ acts that removed from controversy the issue of whether the MOA-AD should be signed or not. In simpler terms, after the respondents declared that the MOA-AD would not be signed, there was nothing left to prohibit and no rights on the part the petitioners continued to be at risk of violation by the MOA-AD. Thus, further discussion of the constitutionality of the MOA-AD now serves no useful purpose; 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 MOA-AD. ii. Mootness and Constitutional Implications The ponencia posits as well that the MOA-AD has not been mooted because it has far-reaching constitutional implications and contains a commitment to amend and effect necessary changes to the existing legal framework. The same reason presented above suffices to defuse the ponencia’s fear about the adverse constitutional effects the MOA-AD may bring or

14 Respondents’ Compliance dated September 1, 2008 citing the Executive Secretary’s Memorandum dated August 28, 2008. 15 Respondents’ Manifestation dated September 4, 2008 citing the Executive Secretary’s Memorandum dated September 3, 2008. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 335 might have brought: without a signed MOA-AD none of these feared constitutional consequences can arise. From another perspective, what the ponencia appears to fear are the constitutional violations and adverse consequences of a signed and effective MOA-AD. These fears, however, are relegated to the realm of speculation with the cancellation of the signing of the MOA-AD and the commitment that it shall not be signed in its present or any other form. Coupled with the subsequent dissolution of the GRP negotiating panel, the government could not have communicated and conveyed any stronger message, short of totally scuttling the whole peace process, that it was not accepting the points covered by the aborted MOA-AD. Government motivation for disavowing the aborted agreement is patently evident from Executive Order No. 3 that outlines the government’s visions and intentions in the conduct of peace negotiations. That the GRP negotiating panel came up with a different result is a matter between the Executive and the negotiating panel and may be the immediate reason why the Executive’s response was to forthwith dissolve the negotiating panel. iii. GRP Obligation to Discuss Ancestral Domain A consistent concern that runs through the ponencia is that the Philippines is bound under the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF in June 2001 to have an agreement on the Bangsamoro ancestral domain. This concern led the ponencia to conclude that the government decision not to sign the MOA-AD will not render the present petitions moot. In other words, the MOA-AD will recur and hence should be reviewed now. A basic flaw in this conclusion is its unstated premise that the Philippines is bound to come to an agreement on ancestral domain, thereby equating the commitment to discuss this issue with the obligation to have an agreement. To quote the ponencia’s cited Tripoli Agreement of June 2001,16 the provision on Ancestral Domain Aspect reads:

16 Whose full title is “Agreement on Peace between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front.” 336 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

On the aspect of ancestral domain, the Parties, in order to address the humanitarian and economic needs of the Bangsamoro people and preserve their social and cultural heritage and inherent rights over their ancestral domain, agree that the same be discussed further by the Parties in their next meeting.” [Emphasis supplied] Under these terms, it is plain that the GRP’s commitment extends only to the discussion of the ancestral domain issue. The agreement to discuss, however, does not bind the GRP to come to an agreement; the GRP is merely bound to try to reach an agreement or compromise. Implicit in this commitment is that the Philippines can always say “no” to unacceptable proposals or walk away from the discussion if it finds the proposed terms unacceptable. This option has not been removed from the Philippines under any of the duly signed agreements on the Mindanao peace process. I believe that this is the message that should come out in bold relief, not the ponencia’s misreading of the June 2001 agreement. With the present MOA-AD effectively scuttled, the parties are back to the above quoted agreement under which the GRP 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 Court to rule upon as they belong to the realm of policy – a matter for other branches of government other than the Judiciary to determine. This Court can only speak with full force and authority on ripe, live, and actual controversies involving violations of constitutional or statutory rights.17 As a rule, courts look back to past actions, using the Constitution, laws, rules and regulations as standards, to determine disputes and violations of constitutional, and statutory rights; the legislature and the executive, on the other hand, look forward to address present and future situations and developments, with their actions limited by existing constitutional, statutory and regulatory parameters that the courts are duty-bound to safeguard. Thus, if this Court can speak at all on the substance

17 See: Badoy v. Ferrer, G.R. No. L-32546, October 17, 1970, 35 SCRA 285; Kilosbayan v. Garcia, G.R. No. 113375, May 5, 1994, 232 SCRA 110. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 337 of future talks, this can only be by way of a reminder that the government’s positions can only be within constitutional and statutory parameters and subject to the strict observance of required constitutional and statutory procedures if future changes to the constitution and to current statutes are contemplated. iv. Mootness and Paramount Public Interest In justifying the application of the exception on the basis of paramount public interest, the ponencia noted that the MOA- AD involved a significant part of the country’s territory and wide- ranging political modifications for affected local government units. It also claimed that the need for further legal enactments provides impetus for the Court to provide controlling principles to guide the bench, the bar, the public and the government and its negotiating entity.18 Unfortunately, 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 MOA-AD. We note, as a matter of judicial experience, that almost all cases involving constitutional issues filed with this Court are claimed to be impressed with public interest. It is one thing, however, to make 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 Court. 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 Judiciary; more than not, these answers and solutions involve matters of policy that essentially rest with the two other branches of government under our constitutional system,19 with the Judiciary being called upon only where disputes and grave abuse of discretion arise in the course applying the terms of the 18 Ponencia, p. 33. 19 See: La Bugal-B’laan Tribal Association, Inc. v. Ramos, G.R. No. 127882, December 1, 2004, 445 SCRA 1; Abakada Guro Party List v. Ermita, G.R. No. 168056, September 1, 2005, 469 SCRA 1. 338 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Constitution and in implementing our laws.20 Where policy is involved, we are bound by our constitutional duties to leave the question for determination by those duly designated by the Constitution – the Executive, Congress, or the people in their sovereign capacity. In the present case, the peace and order problems of Mindanao are essentially matters for the Executive to address,21 with possible participation from Congress and the sovereign people as higher levels of policy action arise. Its search for solutions, in the course of several presidencies, has led the Executive to the peace settlement process. As has been pointed out repetitively in the pleadings and the oral arguments, the latest move in the Executive’s quest for peace – the MOA-AD - would have not been a good deal for the country if it had materialized. This Court, however, seasonably intervened and aborted the planned signing of the agreement. The Executive, for its part, found it wise and appropriate to fully heed the signals from our initial action and from the public outcry the MOA-AD generated; it backtracked at the earliest opportunity in a manner consistent with its efforts to avoid or minimize bloodshed while preserving the peace process. At the moment, the peace and order problem is still with the Executive where the matter should be; the initiative still lies with that branch of government. The Court’s role, under the constitutional scheme that we are sworn to uphold, is to allow the initiative to be where the Constitution says it should be.22 We cannot and should not interfere unless our action is unavoidably necessary because the Executive is acting beyond what is allowable, or because it has failed to act in the way it should act, under the Constitution and our laws. My conclusion is in no small measure influenced by two basic considerations. First, the failure to conclude the MOA-AD as originally arranged by the parties has already resulted in bloodshed in 20 NHA v. Reyes, G.R. No. L-49439, June 29, 1983, 123 SCRA 245.

21 CONSTITUTION, Article VII, Sections 1 and 18. 22 See: Fariñas v. Executive Secretary, G.R. No. 147387, December 10, 2003, 417 SCRA 503. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 339

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. To 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. Though others may disagree, I believe that socio-economic and cultural problems cannot fully be addressed while peace and order are elusive. Nor can we introduce purely pacific solutions to these problems simply because we are threatened with violence as an alternative. History teaches us that those who choose peace and who are willing to sacrifice everything else for the sake of peace ultimately pay a very high price; they also learn that there are times when violence has to be embraced and frontally met as the price for a lasting peace. This was the lesson of Munich in 1938 and one that we should not forget because we are still enjoying the peace dividends the world earned when it stood up to Hitler.23 In Mindanao, at the very least, the various solutions to our multi-faceted problems should come in tandem with one another and never out of fear of threatened violence. Rather 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 Court should exercise restraint as the fears immediately generated by a signed and concluded MOA-AD have been addressed and essentially laid to rest. Thus, rather than pro-actively act on areas that now are more executive than judicial, we should act with calibrated restraint along the lines dictated by the constitutional delineation of powers. Doing so cannot be equated to the failure of this Court to act as its judicial 23 In 1938, Prime Minister Neville Chamberlain triumphantly returned to London from a peace agreement with Adolf Hitler in Munich, Germany. The Prime Minister then triumphantly announced that that he has been assured “peace for our time.” Hitler started the Second World War on September 1, 1939. 340 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I duty requires; 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 exercise restraint at all, it is because the best interests of the nation and our need to show national solidarity at this point so require, 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 back to its feet after the failed MOA-AD. This will again entail negotiation, not along the MOA-AD lines as this recourse has been tried and has failed, but along other approaches that will fully respect our Constitution and existing laws, as had been done in the 1996 MNLF agreement. In this negotiation, the Executive should be given the widest latitude in exploring 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 statutory framework to full support in waging war, if and when necessary – subject only to the observance of constitutional and statutory limits. In a negotiation situation, the worse situation we can saddle the Executive with is to wittingly or unwittingly telegraph the Executive’s moves and our own weaknesses to the MILF through our eagerness to forestall constitutional violations. We can effectively move as we have shown in this MOA-AD affair, but let this move be at the proper time and while we ourselves observe the limitations the Constitution commonly impose on all branches of government in delineating their respective roles. v. The Need for Guidelines from this Court The cases of David v. Macapagal-Arroyo, Sanlakas v. Executive Secretary, and Lacson v. Perez presented a novel issue that uncovered a gray area in our Constitution: in the absence of a specific constitutional provision, does the President have the power to declare a state of rebellion/national emergency? If the answer is in the affirmative, what are the consequences of this declaration? PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 341

David v. Macapagal-Arroyo answered these questions and went on to further clarify that a declaration of a state of national emergency did not necessarily authorize the President to exercise emergency powers such as the power to take over private enterprises under Section 17, Article XII of the Constitution. Prior to this case, the correlation between Section 17, Article XII and the emergency powers of the President under Section 23(2), Article VI has never been considered. In contrast, the present petitions and the intervening developments do not now present similar questions that necessitate clarification. Since the MOA-AD does not exist 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 likewise see no reason to wade into the realm of international law regarding the concerns of some of my colleagues in this area of law. Unless signed and duly executed, the MOA-AD can only serve as unilateral notes or a “wish list” as some have taken 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 Office of the President. But these are matters internal to that Office so that this Court cannot interfere, not even to make suggestions on how procedural mistakes made in arriving at the aborted MOA-AD should be corrected. To be sure, for this Court to issue guidelines relating to unapplied constitutional provisions would be a useless exercise worse than the “defanging of paper tigers” that Mr. Justice Dante O. Tinga abhorred in David v. Macapagal-Arroyo.24 In terms of the results of this exercise, the words of former Chief Justice Artemio Panganiban in Sanlakas v. Executive Secretary are most apt – “nothing is gained by breathing life into a dead issue.”25

24 Supra note 2, at p. 282–283. 25 G.R. 159085, February 3, 2004, 421 SCRA 656, 682. 342 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

vi. The “Capable of Repetition but Evading Review” Exception The best example of the “capable of repetition yet evading review” exception to mootness is in its application in Roe v. Wade,26 the U.S. case where the American Supreme Court categorically ruled on the legal limits of abortion. Given that a fetus has a gestation period of only nine months, the case could not have worked its way through the judicial channels all the way up to the US Supreme Court without the disputed pregnancy being ended by the baby’s birth. Despite the birth and the patent mootness of the case, the U.S. Supreme Court 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 Court’s only window for action. In the Philippines, we have applied the “capable of repetition but evading review” exception to at least two recent cases where the Executive similarly backtracked on the course of action it had initially taken. The earlier of these two cases – Sanlakas v. Executive Secretary27 – involved the failed Oakwood mutiny of July 27, 2003. The President issued Proclamation No. 427 and General Order No. 4 declaring a “state of rebellion” and calling out the armed forces to suppress the rebellion. The President lifted the declaration on August 1, 2003 through Proclamation No. 435. Despite the lifting, the Court took cognizance of the petitions filed based on the experience of May 1, 2001 when a similar “state of rebellion” had been imposed and lifted and where the Court dismissed the petitions filed for their mootness.28 The Court used the “capable of repetition but evading review” exception “to prevent similar questions from re-emerging x x x and to lay to rest the validity of the declaration

26 410 U.S. 113 (1973). 27 Supra note 24, at p. 665. 28 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 757. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 343 of a state of rebellion in the exercise of the President’s calling out power, the mootness of the petitions notwithstanding.” The second case (preeminently cited in the present ponencia) is David v. Macapagal-Arroyo. The root of this case was Proclamation No. 1017 and General Order No. 5 that the President issued in response to the conspiracy among military officers, leftist insurgents of the New People’s Army, and members of the political opposition to oust or assassinate her on or about February 24, 2006. On March 3, 2006, exactly one week after the declaration of a state of emergency, the President lifted the declaration. In taking cognizance of the petitions, the Court justified its move by simply stating that “the respondents’ contested actions are capable of repetition.” Despite the lack of extended explanation in David v. Macapagal-Arroyo, the Court’s actions in both cases are essentially correct because of the history of “emergencies” that had attended the administration of President Macapagal-Arroyo since she assumed office. Thus, by the time of David v. Macapagal-Arroyo, the Court’s basis and course of action in these types of cases had already been clearly laid. This kind of history or track record is, unfortunately, not present in the petitions at bar and no effort was ever exerted by the ponencia to explain why the exception should apply. Effectively, the ponencia simply textually lifted the exception from past authorities and superimposed it on the present case without looking at the factual milieu and surrounding circumstances. Thus, it simply assumed that the Executive and the next negotiating panel, or any panel that may be convened later, will merely duplicate the work of the respondent peace panel. This assumption is, in my view, purely hypothetical and has no basis in fact in the way David v. Macapagal-Arroyo had, or in the way the exception to mootness was justified in Roe v. Wade. As I have earlier discussed,29 the ponencia’s conclusion made on the basis of the GRP-MILF Peace Agreement of June 2001 is mistaken for having been based on the wrong premises. 29 See: pp. 6–7 [pp. 334–336 here] of this Concurring and Dissenting Opinion. 344 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Additionally, the pronouncements of the Executive on the conduct of the GRP negotiating panel and the parameters of its actions are completely contrary to what the ponencia assumed. Executive Order No. 3 (entitled Defining Policy and Administrative Structure for Government’s Comprehensive Peace Efforts) sets out the government’s visions and the structure by which peace shall be pursued. Thus, its Section 2 states The Systematic Approach to peace; Section 3, The Three Principles of the Comprehensive Peace Process; Section 4, The Six Paths to Peace; and Section 5(c) the Government Peace Negotiating Panels.30 The Memorandum of Instructions from the President dated March 2001 to the Government Negotiating Panel, states among others that:

30 SEC. 2. The Systematic Approach to Peace. The 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 Executive Order. These shall provide the framework 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.

SEC. 3. The Three Principles of the Comprehensive Peace Process. The comprehensive peace process shall continue to be governed by the following underlying principles: a. A comprehensive peace process should be community-based, reflecting the sentiments, values and principles important to all Filipinos. Thus, it shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community. b. A comprehensive peace process aims to forge a new social compact for a just, equitable, humane and pluralistic society. It seeks 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 exercise of rights and liberties guaranteed by the Constitution, and where they may compete for political power through an electoral system that is free, fair and honest. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 345

1. The negotiations shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the principles of the sovereignty and territorial integrity of the Republic of the Philippines.

c. A comprehensive peace process seeks a principled and peaceful resolution to the internal armed conflicts, with neither blame nor surrender, but with dignity for all concerned.

SEC. 4. The Six Paths to Peace. The components of the comprehensive peace process comprise the processes known as the “Paths to Peace”. These components processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following: a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This 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. This may require administrative action, new legislation, or even constitutional amendments. b. CONSENSUS-BUILDING AND EMPOWERMENT FOR PEACE. This component includes continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of people’s participation in the peace process. c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENT REBEL GROUPS. This 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. PROGRAMS FOR RECONCILIATION, REINTEGRATION INTO MAINSTREAM SOCIETY AND REHABILITATION. This 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, demobilized combatants and civilian victims of the internal armed conflicts. 346 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

2. The negotiation process shall be pursued in line with the national Comprehensive Peace Process, and shall seek a principled and peaceful resolution of the armed conflict, with neither blame nor surrender, but with dignity for all concerned. e. ADDRESSING CONCERNS ARISING FROM CONTINUING ARMED HOSTILITIES. This 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. BUILDING AND NURTURING A CLIMATE CONDUCIVE TO PEACE. This component includes peace advocacy and peace education programs, and the implementation of various confidence- building measures.

SEC. 5. Administrative Structure. The Administrative Structure for carrying out the comprehensive peace process shall be as follows: C. GOVERNMENT PEACE NEGOTIATING PANELS. There shall be established Government Peace Negotiating Panels (GPNPs) for negotiations with different rebel groups, to be composed of a Chairman and four members who shall be appointed by the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups. They shall report to the President, through the PAPP, on the conduct and progress of their negotiations. The GPNPs shall each be provided technical support by a Panel Secretariat under the direct control and supervision of the respective Panel Chairman. They shall be authorized to hire consultants and to organize their own Technical Committees to assist in the technical requirements for the negotiations. Upon conclusion of a final peace agreement with any of the rebel groups, the concerned GPNP shall be dissolved. Its Panel Secretariat shall be retained in the Office of the Presidential Adviser on the Peace Process (OPAPP) for the purpose of providing support for the monitoring of the implementation of the peace agreement. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 347

x x x x 4. The general approach to the negotiations shall include the following: a. Seeking a middle ground between the aspirations of the MILF and the political, social and economic objectives of the Philippine Government; b. Coordinated Third Party Facilitation, where needed; c. Consultations with affected communities and sectors.31 Under these clear terms showing the Executive’s 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 MOA-AD. Understandably, it may be asked why the MOA-AD turned out the way it did despite the negotiating panel’s clear marching orders. The exact 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. As I mentioned earlier,32 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 Executive are in place so that there is no misunderstanding as to what that branch of government seeks to accomplish and how it intends this to be done. The fact that an issue may arise in the future – a distinct possibility for the ponencia – unfortunately does not authorize this Court to render a purely advisory opinion, i.e., one where a determination by this Court will not have any effect in the “real world.” A court’s decision should not be any broader than is required by the precise facts. Anything remotely resembling 31 President Arroyo’s Memorandum of Instructions dated March 1, 2001; Paragraph 1 above, was reiterated in the President’s Memorandum of Instruction dated September 8, 2003. 32 See p. 6 [pp. 334–335 here] of this Concurring and Dissenting Opinion. 348 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I an advisory opinion or a gratuitous judicial utterance respecting the meaning of the Constitution must altogether be avoided.33 At best, the present petitions may be considered to be for declaratory relief, but that remedy regrettably is not within this Court’s original jurisdiction, as I have pointed out earlier.34 Finally, let me clarify that the likelihood that a matter will be repeated does not mean that there will be no meaningful opportunity for judicial review35 so that an exception to mootness should be recognized. For a case to dodge dismissal for mootness under the “capable of repetition yet evading review” exception, two requisites must be satisfied: (1) the duration of the challenged action must be too short to be fully litigated prior to its cessation or expiration; and (2) there must be reasonable expectation that the same complaining party will be subjected to the same action again.36 The time constraint that justified Roe v. Wade, to be sure, does not inherently exist under the circumstances of the present petition so that judicial review will be evaded in a future litigation. As this Court has shown in this case, we can respond as fast as the circumstances require. I see nothing that would bar us from making a concrete ruling in the future should the exercise of our judicial power, particularly the exercise of the power of judicial review, be justified. vii. The Right to Information The petitions for mandamus essentially involved the demand for a copy of the MOA-AD based on the petitioners’ right to information under Section 7, Article III of the 1987 Constitution. In light of the commonly-held view that the mandamus aspect

33 Van Alstyne, W., Judicial Activism and Judicial Restraint, (last visited October 12, 2008). 34 See p. 3 [pp. 331–332 here] of this Concurring and Dissenting Opinion. 35 State of North Dakota v. Hansen, 2006 ND 139. 36 Hain v. Mullin, 327 F.3d 1177, 1180 (10th Cir. 2003) citing United States v. Seminole Nation, 327 F.3r 939 10th Cir. 2002. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 349 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 People’s Rights Act37 and the Local Government Code)38 that the petitioners now capitalize on to secure the declaration of the nullity of the MOA- AD. I note in this regard though that it is not so much the lack of consultations that the petitioners are rallying against, but the possibility under the MOA-AD’s terms that they may be deprived of their lands and properties without due process of law (i.e., that the lumads’ ancestral domains will be included in and covered by the Bangsamoro Juridical Entity [BJE] without the benefit of prior consultations).39 Thus, the equation they present to this Court is: lack of consultations = deprivation of property without due process of law. The short and quick answer to this proprietary concern is that the petitioners’ claim is premature. With the MOA-AD unsigned, their fears need not materialize. But even with a signed MOA-AD, 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. Under these terms, the MOA-AD’s execution and signing are but parts of a series of acts and agreements; its signing was not be the final act that would render its provisions operative. The MOA- AD itself expressly provides that the mechanisms and modalities for its implementation will still have to be spelled out in a Comprehensive Compact and will require amendments to the existing legal framework. This amendatory process, under the Constitution, requires that both Congress and the people in their sovereign capacity be heard. Thus, the petitioners could still fully ventilate their views and be heard even if the MOA- AD had been signed.

37 Republic Act No. 8371. 38 Republic Act No. 7160. 39 Petition filed by the Province of North Cotabato in G.R. No. 186591, p. 24–25; Memorandum filed the Province of North Cotabato, p. 71. 350 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

It is in the above sense that I doubt if the ponencia’s cited case – Chavez v. PEA40 – can serve as an effective authority for the ponencia’s thesis: that the process of negotiations as well as the terms of the MOA-AD should have been fully disclosed pursuant to the people’s right to information under Section 7, Article III and the government’s duty to disclose under Section 28, Article II of the Constitution. The Chavez case dealt with a commercial contract that was perfected upon its signing; disclosure of information pertaining to the negotiations was therefore necessary as an objection after the signing would have been too late. As outlined above, this feature of a commercial contract does not obtain in the MOA-AD because subsequent acts have to take place before the points it covers can take effect. But more than this, the contract involved in Chavez and the purely commercial and proprietary interests it represents cannot simply be compared with the MOA-AD and the concerns it touched upon – recognition of a new juridical entity heretofore unknown 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 executory subject only to the safeguards that Congress 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 the duty of disclosure to be immediately executory. The cited deliberation recites: MR. DAVIDE: I would to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executory provision? It would require a legislation by Congress to implement?

40 G.R. No. 133250, July 9, 2002, 384 SCRA 152. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 351

MR. OPLE: Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interests are modified by the clause “as may be provided by law.” MR. DAVIDE: But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground of national interest? MR. OPLE: Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy.41 In my reading, while Mr. Davide was sure of the thrust of his question, Mr. Ople was equivocal about his answer. In fact, what he actually said was that his original intention was for the provision to be self-executing, but Mr. Regalado introduced an amendment. His retort to Mr. Davide’s direct question was a cryptic one and far from the usual Ople reply – that the right should immediately influence the climate of public affairs, and that Congress can no longer revoke it. Mr. Ople’s thinking may perhaps be better understood if the exchanges in another deliberation – on the issue of whether disclosure should extend to the negotiations leading to the consummation of a state transaction – is considered. The following exchanges took place: MR. SUAREZ: And when we say ‘transactions’ which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself? MR. OPLE: The ‘transactions’ used here, I suppose is generic and therefore, it can cover both steps leading to a contract and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ: This contemplates inclusion of negotiations leading to the consummation of the transaction. 41 Cited at p. 40 of the Ponencia; Record of the Constitutional Commission, Vol. V, pp. 28–29. 352 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

MR. OPLE: Yes, subject only to reasonable safeguards on the national interest. 42 Thus, even if Mr. Ople 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 recognize, other than those expressly provided by Congress, “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. Viewed in this light, the duty to disclose the various aspects of the MOA-AD should not be as simplistic as the ponencia claims it to be as this subject again opens up issues this Court has only began to deal with in the Neri petition43 and the JPEPA controversy.44 Of course, this is not the time nor the case for a full examination of the constitutional right to information and the government’s duty to disclose since the constitutionality of the MOA-AD is a dead issue. As 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 MOA-AD 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. The peace process as embodied in E.O. No. 3 relates to the wider government effort to secure peace in Mindanao through various offices and initiatives under the Office of the President interacting with various public and private entities at different levels in Mindanao. The peace negotiation itself is only a part of the overall peace process with specifically named officials undertaking this activity. Thus, the consultations for this general peace process are necessarily wider than the consultations attendant to the negotiations proper that has been delegated

42 Record of the Constitutional Commission, Vol. V, pp. 24–25. 43 Neri v. Senate Committee, G.R. No. 180643, March 25, 2008. 44 Akbayan v. Aquino, G.R. No. 170516, July 16, 2008. PROVINCE OF NORTH COTABATO v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) I J BRION, CONCURRING AND DISSENTING OPINION 353 to the GRP Negotiating Panel. The dynamics and depth of consultations and disclosure with respect to these processes should, of course, also be different considering their inherently varied natures. This confusion, I believe, renders the validity of the ponencia’s discussions about the violation of the right to information and the government’s duty of disclosure highly doubtful.

CONCLUSION

The foregoing reasons negate the existence of grave abuse of discretion that justifies the grant of a writ of prohibition. I therefore vote to DISMISS the consolidated petitions. 354 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

The Philippine National Territory∗

Ambassador Lauro L. Baja, Jr.

Ambassador Lauro Liboon Baja, Jr. has over 40 years of distinguished diplomatic experience that includes his appointments as the Philippine Ambassador to Brazil and Italy, and his designation as Philippine Representative to the United Nations (2004) to oversee Manila’s participation as a non- permanent member of the Security Council. He led the Philippine Delegation in a historic two-year membership in the Security Council where he ably articulated Congo. He was also vice chairman Philippine positions on various issues brought before the most of the 1591 Committee tasked to monitor the implementation of the powerful organ of the UN. He served arms embargo, travel ban and as president of the Security Council, first in June 2004 and in assets freeze against Sudan. 2005, and was responsible for the He was also recently historic Security Council Summit recognized by the NGO Group in in September 2005 chaired by the Security Council for his President Arroyo, the first Filipino contribution to international and Asian head of state to preside peace and security and for over the Summit. enabling, for the first time, civil society and NGOs to participate He was vice chairman of in formal meetings of the Security subsidiary bodies of the Security Council: the 1540 committee that Council. seeks to prevent terrorists from He holds degrees in acquiring and using weapons of jurisprudence and law from the mass destruction and the University of the Philippines and sanctions committees on Liberia has taken a Foreign Service Course and the Democratic Republic of at the Oxford University. * Delivered at the Third Distinguished Lecture, Series of 2008, held on June 27, 2008, at the Far Eastern University, Manila, published in the 11 PHILJA JUDICIAL JOURNAL 31, 93–107 (2008). THE PHILIPPINE NATIONAL TERRITORY 355

I. INTRODUCTION

am honored by the invitation of the Philippine Judicial Academy of the Supreme Court of the Philippines to I participate in their Third Distinguished Lecture and discuss with you the topic Metes and Bounds of Philippine Territory. I am awed at the high level at which the Academy is operated and by its mission which in the words of the Chief Justice is “to deepen and broaden our understanding of the law by considering the realism and the pragmatism of contemporary principles and the theoretical and transcendental issues and that will complete our vision of what the law is and ought to be.” The subject is important as it is relevant. It is important to have an inventory of what we hold in common and know what we are and where we are as a nation. Knowing the metes and bounds of our national territory gives the nation a sense of self, and would help the Government and other countries especially in cases where there would be negotiations on overlapping maritime regimes.

II. CONSTITUTIONAL PROVISIONS

The 1935, 1973, and 1987 Constitutions of the Philippines contain provisions on the national territory. Under the 1935 Constitution, the Philippines comprises all territory ceded to the United States by the Treaty of Paris concluded between the US and Spain on December 10, 1998, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded between US and Spain on January 2, 1930, and all territory over which the present Government of the Philippines Islands exercises jurisdiction. The 1935 Constitution is a colonial constitution, approved by the President of the United States on March 23, 1935. 356 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Under the 1973 Constitution, the national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all the other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the airspace, the subsoil, the seabed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. 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. The 1987 Constitution provides that the 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. 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. No reference is made to the Treaty of Paris and related treaties in the 1973 and 1987 Constitutions. The Philippine territory thus, falls into three groupings: 1. The Philippine archipelago; 2. Other territories over which the Philippines has sovereignty or jurisdiction; and 3. The Philippine waters, airspace and submarine areas.

III. THE PHILIPPINE NATIONAL TERRITORY AND THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

No international agreement has greater impact on Philippine National Territory than the United Nations Convention on the THE PHILIPPINE NATIONAL TERRITORY 357

Law of the Sea (UNCLOS). After three years of preparatory committee work and nine years of sessions of the UN Conference on the Law of the Sea, UNCLOS was adopted on April 30, 1982. It was opened for signature at Montego Bay, Jamaica, where 119 States signed on December 10, 1982, the Convention, including the Philippines. The Convention entered into force on November 16, 1994, more than 12 years after its adoption. The Convention represents the codification and the comprehensive and progressive development of the international law of the sea. It is generally considered by the international community as the legally accepted norm for maritime conduct, a “constitution for the oceans” governing all ocean seas, exploitation of ocean resources, and the protection of the maritime environment. The Philippines ratified the Convention on May 8, 1984. The UNCLOS establishes zones of national jurisdiction. There are seven types of waters with varying regimes recognized under the Convention, namely: 1. Internal or Domestic; 2. Archipelagic; 3. Territorial Sea; 4. Contiguous Zones; 5. 200-mile Exclusive Economic Zone; 6. Straits Used for International Navigation; and 7. High Seas. There are certain aspects of the Convention which directly affect the Philippines. The first and foremost is Part IV of the Convention dealing with archipelagic states. The Philippines is the pioneer proponent of the archipelagic principle in the international forum. In the First UN Conference on the Law of the Sea in 1958 and the Second Conference in 1960, the Philippine delegation tried to push through the archipelagic 358 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I principle, but in both conferences, the principle failed to be adopted. The third UN Conference finally incorporated the principle into the Convention.

IV. ARCHIPELAGIC STATE

The Convention established the legal concept of the archipelago as an integrated unit in which the islands, waters, and other natural features form an integral, geographical, economic and political entity. Before Part IV of the Convention, the Philippines was in legal effect dismembered, since international law recognized only a 3-mile territorial sea around every island so that in many parts of the Philippines, the waters between the islands beyond three miles from the shore of the opposite island were regarded as open sea or international waters. With Part IV of the Convention, no longer will the various islands of the Philippines be regarded as separate units, each with its own maritime means and waters between them as distinct from the land territory. The archipelagic state, like the Philippines, is permitted to draw baselines around the archipelago, connecting the outermost points of the outermost islands. All waters within the baselines, designated as archipelagic waters, are under the sovereignty of the archipelagic state regardless of their width and dimension. This national sovereignty exists also with respect to the airspace above the archipelagic waters and to the seabed and subsoil below them and to all the resources, living or nonliving. Let me take up the matter of the Philippine maritime limits set by the Treaty of Paris and related treaties as they are affected by UNCLOS. We have a wider territorial sea under the Treaty of Paris and related treaties. Our problem with the Treaty of Paris is getting other nations to accept these limits. Even the US expressly opposed our claim, saying that Spain has ceded to US only the islands inside the described limits in the treaty and THE PHILIPPINE NATIONAL TERRITORY 359 not the waters. The US contends that when she was exercising sovereignty in the Philippines, she limited herself for three miles around every island. Even Indonesia, also an archipelago, refused to support our claim to these “historic waters.” The Philippine Delegation to UNCLOS, thus, opted for acceptance of the Convention because we believed that the Convention as a whole would be more beneficial to the Filipino people. We have in mind the recognition of the archipelagic principle and the provisions of the exclusive economic zone. This option was endorsed by the different groups and subgroups created by the cabinet Committee on the Law of the Sea which was tasked to study the Convention prior to the Philippines’ ratification.

V. T HE PHILIPPINES AND THE EXCLUSIVE ECONOMIC ZONE

The exclusive economic zone (EEZ) is one of the new concepts in the Convention, as an additional maritime area of States. In archipelagic states, it is a belt around the archipelago more than 200 nautical miles wide, measured from the archipelagic base lines. The Philippines has certain rights in this exclusive economic zone, namely: 1. Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources whether living or nonliving of the waters and the seabed and deep subsoil; and 2. Jurisdiction with regard to the establishment and use of artificial islands, installations and structures for maritime scientific research and protection and preservation of the maritime environment. The EEZ of the Philippines measures about 395,400 square nautical miles. The area that we have been claiming as our historic territorial sea extending the limits of the Treaty of Paris 360 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I measures 263,300 square nautical miles. The EEZ, therefore, is bigger than the territorial sea by 132,100 square nautical miles which is equivalent to about 45 million hectares where the Philippines will be entitled to all the resources. Moreover, with the adoption of the archipelagic principle, the Philippines gained 141,800 square nautical miles, or inside the baselines or a total gain of 93 million hectares. It is also important to note the Philippines Declaration on the signing of the Convention on the Law of the Sea where the country manifests: 1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines; 2. Such signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the United States of America and Great Britain of January 2, 1930; 3. Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defense Treaty between the Philippines and the United States of America on August 30, 1951, and its related interpretative instrument; nor those under any other pertinent bilateral or multilateral treaty agreement to which the Philippines is a party; 4. Such signing shall not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto; THE PHILIPPINE NATIONAL TERRITORY 361

5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines; the Government of the Republic of the Philippines maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution; 6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of authority to enact legislation, protect its sovereignty, independence, and security; 7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation; 8. The agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under Article 298 shall not be considered as a derogation of Philippine sovereignty. The Declaration was made under Article 310 of the Conventions which allows three categories of declarations, namely: 1. General Declarations; 2. Interpretative Declarations; and 3. Declarations Relating to Settlement of Disputes. According to the late Senator Arturo Tolentino, who headed the Philippine Delegation in all three UN conferences on the 362 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I law of the sea, we filed this declaration to give notice to other countries signing the Convention that we have claims which may not be completely in harmony with the provision of the Convention in relation to our domestic legislation. The Declaration was circulated to all states which participated in the drafting of the Convention. Concerns have been expressed on the nature of archipelagic waters in relation to our internal waters. The sovereignty over archipelagic waters is subject to two kinds of passage by foreign ships. First, innocent passage and second, archipelagic sea lanes passage. Innocent passage is well known in international law. It is passage that is not prejudicial to the peace, good order or security. Archipelagic sea lanes passage means continuous and expeditious or unobtrusive navigation or overflight through an above sea lane that must be established by the archipelagic state between one part of the high seas or EEZ and another part of the high seas or EEZ. Archipelagic sea lanes passage must be distinguished from transit passage envisioned in straits used for international navigation. The latter is imposed by the Convention; archipelagic sea lanes passages can be exercised only on such sea lanes that the archipelagic state would want to designate or establish. Our straits are entirely within our archipelagic waters and therefore cannot be said to be connecting our EEZ or high seas with another part of the high seas or EEZ. It is also important to note that the Convention provides for solutions in case of overlapping boundaries in the territorial sea, EEZ, and the continental shelf. In the case of the territorial seas that overlap, a median line shall be drawn and each party gets one-half of the overlapping area. THE PHILIPPINE NATIONAL TERRITORY 363

In the case of overlapping EEZ and continental shelf, the issue of overlap will be effected by agreement among the parties concerned. Failing agreement, the parties should resort to the settlement of disputes provision of the Convention.

VI. BASELINES

The importance of drawing baselines cannot be overemphasized. It is from these baselines that the regime of the territorial sea, the contiguous zone, the exclusive economic zone and to a certain degree the continental shelf is measured. The Philippines has its own baselines law, Republic Act No. 3048 and Republic Act No. 5446. They are not going to be disturbed at all but we may have to amend existing baselines which do not conform to the requirements of the Convention. The longest baseline can only be 100 nautical miles with some exception that would extend to 125 nautical miles, provided they do not exceed 3 percent of this total number of baselines. Therefore we have to adjust or do some installations to our baselines which exceed 100 miles. Our law cannot be automatically modified or repealed by the Convention. They can be modified or repealed only by our own domestic laws which we reserve the right to pass.

VII. THE KALAYAAN GROUP OF ISLANDS

Will the drawing of baselines to include the Kalayaan Group of Islands violate the UNCLOS? The Philippine Delegation believes that it will not as long as we do not exceed the maximum length of the lines. The lines do not have to be drawn from large islands as long as they are islands that are kept above the level of the water. These islands can be used as point for drawing baselines. The Philippines has every logical reason to draw baselines that will include the Kalayaan Island Group (KIG). The Philippines exercises effective jurisdiction over it considering the 364 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I establishment of a military garrison and local civil units there. The islands are considered part and parcel of the Republic of the Philippines by virtue of Presidential Decree 1596 of 1978. The Decree was registered with the UN Secretariat on May 14, 1980. The Kalayaan Island Group is part of the Spratly Group of Islands. As we know, China, Taiwan, and Vietnam claim the entire Spratlys. All claimants, except Brunei, occupy parts of the Spratlys. Kalayaan is a fifth class municipality of Palawan composed of seven islands, namely: 1. Pag-asu – 32.2 hectares 2. Likas – 18.6 hectares 3. Parola – 12.7 hectares 4. Lawak – 7.9 hectares 5. Kota – 6.45 hectares 6. Patag – 0.52 hectares 7. Panota – 0.44 hectares The KIG adds to the Philippines’ exclusive economic zone, an area of 360, 850 square nautical miles. That the Spratly Group of Islands, to which the KIG is a part, is claimed by other countries should reinforce rather than deter our determination to include the Kalayaan in drawing our baselines. The KIG is the most strategic area in our exclusive economic zone, significant in terms of food, energy, navigation, trade and security. It is our national heritage, as the book edited by Porfirio Aliño and Christine Quibilan aptly describes in detail the dynamics of the islands. We must formulate policies and adopt measures which will not diminish that heritage. To exclude Kalayaan and just say we are not abandoning our claim to the islands is empty rhetoric and does violence to common sense. An unlikely diplomatic fallout by including KIG in our baselines should not unduly worry THE PHILIPPINE NATIONAL TERRITORY 365 the Philippines. Nor should we entertain the bogey of war erupting over this issue. Notes verbale and aide memoires are SOP noises, required in international relations, especially among claimant countries. We should be doing the same. In foreign relations, silence is not golden all the time. Let us note that the signals which come from outside which gave the leadership of the country feet of clay in drawing our baselines are mere talking points, if reports are accurate. Kalayaan and baselines are current challenges to Philippines Diplomacy. The Department of Foreign Affairs (DFA) should restore and renew being primus inter pares on foreign policy issues and be confident, consistent, and committed in its advocacies of policies. There is a time for niceties and politesse and a time to be proactive, forceful, and aggressive in international relations. To be timid and pursue a serendipitous approach on Kalayaan and baselines can be perfect diplomatic storm of irrelevance for the Department. There is no greater tragedy for an institution than to find itself, too late, that it has become irrelevant because of inaction and/or timidity. These thoughts should apply to our attitude towards the Tripartite Agreement for Joint Marine Seismic Undertaking (JMSU). The issue is sub judice. It is, however, relevant to note that the area of JMSU falls within our EEZ; that seismic activities are precursors of exploration and exploitation of natural resources; that the undertakings were signed by the oil authorities of the three countries, and that if reports are true, one of the parties objected to let the undertaking lapse after three years. Previous attempts at joint exploration and development of the South China Sea failed because of no agreement on where it will be held. Let me just state that we may have unwittingly allowed ourselves to be led back to the status where we were before we negotiated the Declaration on the Conduct of Parties in the South China Sea. The Association of South East Asian Nations (ASEAN), led by the Philippines, 366 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I has always taken pride in convincing China to discuss with ASEAN as a group the South China Sea as a regional and international issue instead of a bilateral issue among claimant countries. JMSU may have put us back to square one. The Philippines may have unwittingly contributed to ASEAN again being sucked into vortex of irrelevance.

VIII. BACK TO THE FUTURE

It is urgent for the Philippines insofar as the metes and bounds of its national territory is concerned to draw its baselines as an archipelagic state and consequently measure the extent of our continental shelf, bearing in mind the deadline on May 13, 2009. The continental shelf comprises the seabed and subsoil of the submarine area beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines from which the territorial sea is measured when the outer edge of the continental margin does not extend up to that distance. Time is of the essence for us to submit our claim to our continental shelf as a natural prolongation of our law territory. The proposal for a congressional commission on national territory which would be given until December 31 to submit a report on national territory may be a bit late. Information and technical description on the limits of our continental shelf beyond 200 nautical miles (which limits we are claiming) should be submitted to the Commission on the Limits of the Continental Shelf. The Commission shall evaluate the submission and make recommendations to the coastal state on matters related to the establishment of the outer limits of their continental shelf. Considering the process involved, a submission by the Philippines even three months before its deadline may preempt favorable consideration. It is also too late in the day to debate whether we should be an archipelagic state or not, unless we intend to denounce UNCLOS. THE PHILIPPINE NATIONAL TERRITORY 367

It would be unrealistic to hope for a perfect definition of the national territory in the sense that it will be accepted by all. National governments invariably decide paramount issues not on idealistic considerations but on practical realities on the ground. The Philippines should be unyielding insofar as national interests are concerned. That is what the Philippine Delegation to UNCLOS did and that is what the Government should do so insofar as the metes and bounds of our territory are concerned. In the life of all nations, there come moments that decide the direction of a country and reveal the character of its people. We are now of that moment. We bind the future by what we do or fail to do in the present. I believe that the learned men and women of the Philippine Judicial Academy can extricate the leadership of the country from the present policy blind spot on baselines and the continental shelf and rescue its leaders from inertia and inaction. This should promote national ocean consciousness and would be a great oblation to stability and security. It is time to give in to reason. 368 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Reactions on the Metes and Bounds of the Philippine National Territory:

An International Law∗ and Policy Perspective

Jay L. Batongbacal, Esq.

Atty. Jay L. Batongbacal obtained his Bachelor of Arts in Political Science (1987) and Bachelor of Laws (1991) degrees from the University of the Philippines, and his Master of Marine Management degree (1996) from the Dalhousie University in Canada. He is also a Doctoral Candidate at the Dalhousie Law School. Atty. Batongbacal specializes in the Law of the Sea and international marine environmental law issues. He has taught the Integrated Coastal and Ocean Management both in the Philippines and course at Dalhousie, and for the internationally, and has worked as a past several years has been a consultant to government, non- regular guest lecturer for Law of government, and private sector the Sea and boundary organizations. negotiations at the international He is presently at work on his Oceans Institute of Canada. Ph.D., focusing on the subject of He has published many ocean energy development and articles on marine policy issues social-ecological justice.

∗ Delivered at the Third Distinguished Lecture, Series of 2008, held on June 27, 2008, at the Far Eastern University, Manila, published in the 11 PHILJA JUDICIAL JOURNAL 31, 108–131 (2008). REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 369

I. INTRODUCTION

our Honors, distinguished guests, ladies and gentlemen, good afternoon. Forgive the “intrusion” of Y being a surprise speaker at this Distinguished Lecture, but I have been asked by the Honorable Justice Florentino P. Feliciano to speak on this topic, and I would not like to disappoint him. Thank you for your indulgence as I stand before you due to a fortunate coincidence. I have taken time away from my doctoral studies in Canada in order to accompany a senior member of the United Nations Commission on the Limits of the Continental Shelf to hold a scientific and technical workshop to assist the Philippines in preparing a submission for an extended continental shelf. As they are old friends, I had arranged for this senior member to meet with Justice Feliciano on the first day of our workshop, and it was during that meeting that he informed us of this Distinguished Lecture. Subsequently, I was asked to come to this symposium to deliver some remarks because since 1996, I have also been studying many aspects of international marine law, particularly concerning the Philippines and the International Law of the Sea. At the outset, I would like to clarify that, contrary to what you may have read in the newspapers, there is no deadline for submission to the United Nations of the metes and bounds of the national territory. There is no treaty, convention, or other agreement stating this is to be done. What the May 13, 2009 deadline refers to is the submission of technical and scientific information on the outer limits of the continental shelf beyond 200 nautical miles, for countries intending to make such a claim, pursuant to Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS).1 The deadline is mentioned in Annex II of the UNCLOS, which was originally set to 2004, or 10 years after the entry into force of UNCLOS in 1994. An extension was

1 United Nations Convention on the Law of the Sea. Montego Bay, Jamaica. December 10, 1982. 1833 UNTS 396. 370 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I later agreed upon at the 11th Meeting of the State Parties in May 2001, by counting the 10-year period from the date of formal organization of the UN Commission on the Limits of the Continental Shelf on May 13, 1999.2 The continental shelf beneath the sea, including the “extended” continental shelf beyond 200 nautical miles, strictly speaking, is not the outer limit of the national territory. In international law, “territory” refers specifically to land up to the low-water line, and the nature of any area beyond that is subject to rules of international law, especially as codified in UNCLOS.

II. A CRISIS OF CONSISTENCY AND CONFUSION

The confusion over the nature of the 2009 deadline is emblematic of the general crisis of consistency and confusion that pervades Philippine territorial and jurisdictional law. The crisis of consistency refers to the fact that there is a fundamental inconsistency between the way Philippine national law has configured the national maritime territories and jurisdictions, and the way in which international law has defined the legitimate ways by which States may lay claim to maritime territories beyond their coasts. There is no question as to the terrestrial components of the national territory; but the inconsistency arises once we extend into the sea. In order to appreciate the stark difference, it is best to take a very graphic approach to analyzing how current Philippine legislation configures our maritime zones, and compare them with what is acceptable under international law.

2 United Nations. Report of the Eleventh Meeting of State Parties, Paragraph 81, UN Doc. SPLOS 173 (June 14, 2001). REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 371

Figure 1. Philippine national boundaries shown in official Philippine maps

The so-called “international treaty limits” appear in official maps and charts issued by the Philippines to indicate the national territory,3 and is shown in Figure 1. However, the apparent simplicity of the polygonal shape around the islands of the archipelago in official maps and charts conceal the multiple sources and legal bases of the lines that define it. Figure 2 actually illustrates the different boundaries that are revealed by the different treaties and legislation that determine 3 See for example, National Mapping and Resource Information Authority (NAMRIA), Nautical Chart No. 4200: The Republic of the Philippines. Taguig City: National Mapping and Resource Information Authority, 2006. Also NAMRIA, Philippine Map with the Kalayaan Island Group. Taguig City: NAMRIA, 2008. 372 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I the configuration of our maritime jurisdictions. A more detailed exposition of the historical development of Philippine maritime zone legislation has been done elsewhere.4 What must be noted is that each of these treaties and laws create maritime spaces that are qualitatively different from each other in subtle ways, and the interaction between them results in an inconsistent patchwork of maritime jurisdictions.

Figure 2. Philippine maritime boundaries under current legislation

4 See J. Batongbacal, The Maritime Territories and Jurisdictions of the Philippines and the United Nations Convention on the Law of the Sea. 76 PHILIPPINE LAW JOURNAL 2, Quezon City, Philippines, December 2001, pp. 123–168. REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 373

As shown in Figure 2, we first see the limits of the original Treaty of Paris of 1898 between the US and Spain,5 which apparently omitted to enclose islands to the North and the Southwest areas of the country. It was because of this omission that a second treaty, the Treaty of Washington, was signed in 1900 to clarify that these islands that were not within the Treaty of Paris limits were also ceded to the US by Spain.6 Then in 1930, the United States and the United Kingdom executed a Convention to further clarify the division of the islands between their respective colonies in the area off the northern coast of Borneo.7 When the 1935 Constitutional Convention debated the article on the national territory, it was noted that the non- inclusion of parts of the Batanes Islands in the North were due to the technical description which located the line at the 20th parallel, however, it was described as running through the Bashi Channel which was located just above the 21st parallel. It was thus proposed to unilaterally extend the Northern boundary to this location in the article describing the national territory.8 This was not adopted in the eventual wording of the 1935 Constitution, but has been implemented in all official maps and charts issued by the Philippines.9 Not shown in Figure 2 is

5 Treaty of Peace between the United States of America and the Kingdom of Spain, Paris, France, December 10, 1898, Article 111. 6 Sole Article, Treaty between the Kingdom of Spain and the United States of America for the Cession of Outlying Islands of the Philippines, Washington, D.C., November 7, 1900. 7 Convention between the United States of America and Great Britain Delimiting the Boundary between the Philippine Archipelago and the State of North Borneo, Washington, D.C., January 2, 1930, Article I.

8 RECORD of the Constitutional Convention, Volume 11, Journal No. 21–40, in Lotilla, R.P. (Ed.) The Philippine National Territory, Manila: UP Institute of International Legal Studies and Foreign Service Institute, 1995, at pp. 168–258. 9 See NAMRIA 2006 and NAMRIA 2008, supra note 3. 374 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I the extent of the continental shelf claimed by the Philippines since 1949.10 In 1968, Republic Act No. 5446 was enacted to correct typographical errors in earlier legislation (Republic Act No. 3046 [1961]) to define the baselines of the Philippines.11 These straight baselines were based on the rules in the Anglo- Norwegian Fisheries Case of the International Court of Justice, and asserted that all waters inside the baselines and between the islands were considered as internal waters, while all waters outside the baselines around the islands up to the limits described in the Treaty of Paris and Treaty of Washington were territorial waters.”12 In 1978, Presidential Decree No. 1596 declared the entire area of the Kalayaan Group of Islands to be under Philippine sovereignty and described this area in metes and bounds that attached to the treaty limits west of Palawan.13 At the same time, however, Presidential Decree No. 1599 was issued declaring the Philippine Exclusive Economic Zone, which described a 200 nautical mile zone extending from the baselines under Republic Act No. 5446.14

10 Republic Act No. 387, The Petroleum Act of 1949, June 18, 1949, Section 3, and Proclamation No. 370, Declaring as Subject to the Jurisdiction and Control of the Republic of the Philippines All Mineral and Other Natural Resources in the Continental Shelf of the Philippines, 1968. Neither instrument provides the geographic extent of the Philippine continental shelf. 11 Republic Act No. 5446, An Act to Amend Section I of Republic Act No. 3046, entitled “An Act to Define the Baselines of the Territorial Sea of the Philippines,” September 18, 1968. 12 Section 2, Republic Act No. 3046 (1961) in relation to Section I, RA No. 5446 (1968). 13 Presidential Decree No. 1596, Declaring Certain Areas Part of the Philippine Territory and Providing for Their Government and Administration, June 11, 1978. 14 Presidential Decree No. 1599, Establishing an Exclusive Economic Zone and for Other Purposes, June 11, 1978. REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 375

The Philippines’ maritime zone configuration resulting from the above laws is in stark contradiction to generally accepted norms of international law on the nature and extent of coastal State jurisdiction over its maritime areas. The fundamental principle underlying maritime zones in international law is that State sovereignty and jurisdiction steadily diminishes, the farther one is from the shore. From the low-water line, State sovereignty reduces to certain sovereign jurisdictions, and then to specific sovereign rights, until areas beyond national jurisdiction. UNCLOS recognizes that coastal States are entitled to maritime zones on the basis of specified distances from the baselines. Within the baselines, States are entitled to internal waters, which normally encompass bays, estuaries, and mouths of rivers, but beyond those baselines, the zonal configurations apply. Thus, coastal States are entitled to a territorial sea of up to 12 nautical miles within which it may exercise full sovereignty,15 a contiguous zone of 24 nautical miles wherein they exercise only certain jurisdictions,16 and an exclusive economic zone of up to 200 nautical miles wherein they are entitled to only certain sovereign rights to the superjacent waters.17 Beneath the waters, the seabed up to 200 nautical miles is considered as the continental shelf of the coastal state.18 But depending on certain conditions and characteristics of the seabed, this continental shelf may extend beyond 200 nautical miles up to a maximum of 350 nautical miles.19

15 The only limitation to this sovereignty is that they must allow the innocent passage of ships through such waters. See Article 17, UNCLOS. 16 UNCLOS, Article 33. 17 UNCLOS, Articles 55–57. 18 UNCLOS, Article 76, paragraph I. 19 UNCLOS, Article 76, paragraphs 4–6. 376 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

However, this steady reduction is not followed in Philippine law, and varies depending on the area, as indicated when one traces the degree of sovereignty and jurisdictions established by law in different directions from certain points in the Philippines. Philippine laws effectively create severe and illogical jurisdictional weaknesses between the shore and the outermost limits of its maritime zones. Reference to Figure 2 makes it easier to appreciate these inconsistencies generated by our legislation. For one, we have territorial waters located outside the EEZ in the northeastern and northwestern corners of the treaty limits. Second, the westernmost area of the Kalayaan Group of lslands is supposed to be a zone of sovereignty,20 which in effect makes it internal, not merely territorial waters, but it is located beyond the EEZ. Third, in other areas, from the baselines to 200 nautical miles, our waters are declared to be EEZs, no territorial water areas in between having been reserved from the effect of PD No. 1599. And to date, we have been unable to negotiate the EEZ boundaries between ourselves and our neighboring countries to the North and South, despite the mandate to do so,21 likely because the median boundary will have to be located well inside the treaty limits in many places. These are the kinds of inconsistencies that generate confusion in the policies and implementation of law by government agencies, and effectively paralyze us from taking effective action to exercise our sovereignty and jurisdiction against foreign vessels and activities in those questionable areas. Since other States are not bound by our laws, they may only recognize maritime zones based on UNCLOS. Thus, as far as the international community is concerned, the Philippines’ maritime zones are configured in the manner shown in Figure 3. 20 Declaring Certain Areas Part of the Philippine Territory and Providing for Their Government and Administration, Presidential Decree No. 1596 (1978), Section 1. 21 Establishing an Exclusive Economic Zone and for Other Purposes, Presidential Decree No. 1599 (1978), Section 1. REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 377

Figure 3. Philippine maritime zones currently acceptable to the international community

The Philippines first declared that its territorial waters extended up to the treaty limits in a Note Verbale to the UN Secretary General in 1958.22 But the United States immediately and later repeatedly denied that it ever considered the treaty limits as territorial boundaries23 and US state practice up to the end of the Commonwealth period did adhere to only the then- common 3-mile limit for the territorial sea.24 The phraseology of the 1898 Treaty of Paris and 1930 US-UK Convention

22 Permanent Mission of the Philippines to the United Nations. Note Verbale, January 20, 1956, in Lotilla 1995, at pp. 272–273. 23 In Lotilla 1995, at p. 274. 24 R. Aquino, and C. Grino, Law of Natural Resources, Manila: E.F. David & Sons, 1957, at pp. 425–426. 378 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I themselves expressly refer only to the status of the islands,25 and not the waters within or divided by the lines they described. The fact that the 1900 Treaty of Washington referred to islands outside of the treaty limits26 is also consistent with the US position. Recalling the ancient principle that “the spring cannot rise higher than its source,” then it is indeed impossible to anchor the Philippines’ sovereignty and jurisdiction over the entire areas within the treaty limits upon presumed succession to the sovereignty and jurisdiction of the United States. Note the huge difference between Figure 3 and Figure 1. The difference illustrates the wide gap between what is prescribed in Philippine law, and that which is normally acceptable to the international community. What should be of concern to us is that the international community’s current perspective leaves large pockets of EEZs within the Philippines, between its component islands, the largest being the Sulu Sea. Within the EEZ, foreign States exercise high seas freedoms, while the Philippines only has certain sovereign rights. This need not be the case, however. Under Part IV of the UNCLOS, the Philippines has the option of declaring itself to be an Archipelagic State. This allows the Philippines to eliminate the pockets of EEZs between its islands, and convert them into

25 Article 3, Treaty of Paris, 1898 states that: Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following line x x x. while Article I, Convention between the US and Great Britain, 1930, states that: It is hereby agreed and declared that the line separating the islands belonging to the Philippine Archipelago on one hand and the islands belonging to the State of North Borneo which is under British protection on the other hand shall be and is hereby established as follows x x x. 26 Sole Article, Treaty of Washington, 1930. REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 379 archipelagic waters that are recognized to be under its sovereignty.27 Figure 4 shows one possible configuration that this may take.

Figure 4. One possible implementation of UNCLOS Part IV

The concept of the Archipelagic State and sovereignty over archipelagic waters is the result of the negotiations conducted by the Philippines along with Indonesia and a few other smaller island states during the UNCLOS conferences. The international community’s recognition is part of a compromise, and in return for recognition over a much larger area of waters (which non- archipelagic States cannot be similarly entitled to), Archipelagic

27 UNCLOS, Article 49. 380 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

States must allow the innocent passage (in the same way that coastal States allow innocent passage through their territorial seas) and archipelagic sealanes passage of vessels through its waters.28 Archipelagic sealanes passage is a more liberal passage regime than innocent passage, but must be used only for the purpose of continuous, expeditious, and uninterrupted passage through the archipelago.29 Doing anything more may subject the passing vessel to the archipelagic State’s sovereignty and jurisdiction. However, it must be emphasized that this is an option. Until we declare ourselves to be an Archipelagic State and implement Part IV through necessary legislation, then the international community is not obliged to recognize that we are such. It is for this reason that we still need to enact baseline legislation, in order to harmonize our national legislation with international law. Oliver Wendell Holmes once said that the law is about predicting the consequences of the actions of a “bad man.”30 In the case of the Law of the Sea, it is about the consequences of the actions of a “bad foreign vessel,” that is, when such a vessel (not normally bound by national law outside that of its registry) undertakes an activity that is contrary to the sovereignty or jurisdiction of a nearby coastal State. Those consequences can only be legitimately determined in accordance with the rules under UNCLOS which prescribe the extent to which coastal States can exercise their sovereignty or jurisdiction depending on the distance of the incident from the coastal States shores. Implementation of the UNCLOS’ provisions on Archipelagic States will therefore allow the Philippines to maximize its sovereignty and jurisdiction over the marine areas around its land territories, areas that would be greater than what we would

28 UNCLOS, Articles 52–53. 29 UNCLOS, Article 53, paragraph 3.

30 Holmes, 0. W., The Path of the Law., 10 HARVARD LAW REVIEW 457. REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 381 normally be entitled to under international law as an ordinary coastal State.

III. COMMON MISCONCEPTIONS ABOUT THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

Implementation of the UNCLOS, however, has also been subject to massive confusion and misinformation, as indicated by the public debate over the various bills and options pending in Congress. A number of mistakes and misconceptions about the legal effects of the UNCLOS implementation have been prominently raised in the media, arising from the lack of adequate knowledge and understanding of UNCLOS, its background, and the nature of international law in general. One of them is with respect to the 2009 deadline, already mentioned above. The most serious misconception in the popular debate is that the enactment of archipelagic baselines, and particularly the enclosure of the Kalayaan Island Group within a single baseline system, is needed to “strengthen” sovereignty over them. This is entirely false. First, there is no need to enclose all the islands of an archipelago within a single set of archipelagic baselines in order for it to be considered part of the Archipelagic State. Article 47 of UNCLOS expressly defines an archipelagic State to be “a State constituted wholly by one or more archipelagos and may include other islands.” The legal principle involved here is that of contiguity, and it is clear in international law that territorial contiguity is not essential where the land is separated by the sea. Many non-archipelagic States like the United States, New Zealand, Australia, United Kingdom, Malaysia, Papua New Guinea, and others have separate territories that are not connected by a single set of baselines. In fact, in the case of the United States and Malaysia, between parts of their territories, there are territories of other States (Canada and Indonesia, respectively). Even our own national 382 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I legislation adopts this exception to the principle, by providing in the Local Government Code that the territories of local governments comprised of two or more islands need not be contiguous.31 Second, the drawing of baselines under UNCLOS does not operate like the process for securing a Torrens Title. UNCLOS cannot be used to claim islands or any other land territories, because the fundamental principle underlying the maritime zones is that sovereignty and jurisdiction over the adjacent seas flow from the sovereignty over the land, not the other way around. “Water flows downstream,” as an old axiom goes, and therefore the drawing of baselines follows from the exercise of sovereignty; conversely, sovereignty does not arise merely from the act of drawing of baselines. Third, there is no need to “strengthen” sovereignty over the Kalayaan Island Group because we have already been exercising complete sovereignty over the area since the 1970s. It has been continuously occupied and administered as a municipality of Palawan, municipal elections are held annually for the area, and its surrounding waters have been subject to Philippine control of activities such as fishing, scientific research, and petroleum exploration. To state now that we still need to “strengthen” sovereignty may in fact be seen as a counterproductive admission against interest that the Philippines believes that its sovereignty is still imperfect and inchoate. In connection with this, there are also those who assert that the conduct of the seismic surveys under the Joint Marine Seismic Undertaking (JMSU) somehow derogates or diminishes the Philippines’ sovereignty over the Kalayaan Island Group. Since the issue is sub judice, I cannot comment upon this in great detail. But without dealing with the JMSU in particular, the question is whether seismic surveys, which is a scientific 31 See Sections 7, 386, 442, 450, and 461, Republic Act No. 7160, The Local Government Code of 1991, October 10, 1991. REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 383 method of determining the nature and character of the seabed beneath, per se, diminish or affect Philippine sovereignty. For that matter, it could be considered whether scientific surveys conducted by foreign States affect the status of sovereignty. Figure 5 is a collection of the tracklines of not only seismic, but also hydrographic, gravimetric, thermographic, chemical, and other scientific surveys conducted by foreign institutes and vessels within and around the Philippines. All the data from these surveys are freely accessible from the internet.32 Aside

Figure 5. International seismic and other scientific surveys in and around the Philippines

32 See National Geophysical Data Center (NGDC), “Marine Geophysical Trackline Data,” (last accessed June 25, 2008). 384 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I from these, one must also consider the large number of seismic surveys conducted by foreign oil exploration companies contracted by the Department of Energy for decades, and whose records are kept confidentially by the DOE’s Energy Data Center. These scientific surveys and petroleum exploration activities have been going on ever since the Philippines came under American rule. One could then ask whether the Philippines is substantially and concretely any less sovereign now, with the revelation of knowledge that these have been taking place all this time, than it was before. It is not merely the nature of an activity which must be considered when determining the effect on sovereignty, but also, and perhaps more importantly, its subsequent use. There are also those who oppose the implementation of UNCLOS and establishment of archipelagic baselines for the reason that to do so would “open” Philippine waters to foreign vessels, due to the commitment to allow innocent passage and archipelagic sealanes passage.33 But this fear does not acknowledge the reality that historically, the Philippines has always allowed foreign vessels to pass through its waters. Even when it asserted the archipelagic principle back in 1956, the Philippines expressly provided that foreign vessels were allowed to exercise innocent passage throughout its waters, without clearly distinguishing the respective extents of the internal and territorial waters.34 International publications touching on the sea routes through the seas around the

33 See for example, M. Magallona, “The UNCLOS and Its Implications on the Territorial Sovereignty of the Philippines” in World Bulletin, Vol. 11, Nos. 1–2 (January-April 1995) UP Institute of International Legal Studies, UP Diliman, Quezon City (I995), pp. 50–76; M. Magallona, The Dismantling of the Philippine State and Its Impact on Civil Society,” UP Institute of International Law Studies, 1996; and M. Defensor-Santiago, Sponsorship Speech for a Congressional Commission on National Territory, Philippine Senate, May 21, 2008. 34 See Note Verbale, January 20, 1956, supra Note 22. REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 385

Philippines have always shown well-known routes passing through its islands.35 That these navigational practices continue today can be proven. In 2004, the US National Center for Ecological Analysis and Synthesis determined prevailing global ship routes as a means to determining the ecological impact of world shipping.36 To make this determination, it used position data from about 3,300 volunteer commercial vessels (about 11 percent of the global merchant fleet) of various types which contributed such data as part of sea surface information used for international weather monitoring and forecasting programs. These were comprised of ordinary cargo, passenger, and sometimes military vessels of different nationalities navigating through the seas as they normally do, and thus may be considered as a statistical sample of the ship routes used by the world fleet. The excerpt from this data shows the area of Philippines in Figure 6, and the tracks of hundreds of ships passing through and around its waters. It is an especially enlightening manifestation of the kind of vessel traffic that has been steaming through and around our jurisdictional waters for a long time.

35 See for example, J. Morgan, and M. Valencia, Eds., Atlas for Marine Policy in Southeast Asian Seas. Berkeley: University of California Press, 1984. Also L. T. Ghee, and M. Valencia, Eds., Conflict over Natural Resources in South-East Asia and the Pacific. Oxford, New York, and Toronto: Oxford University Press, 1990. 36 National Center for Ecological Analysis and Synthesis (NCEAS), “Data: Impacts,” (last accessed June 25, 2008). 386 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Figure 6. International vessel tracks/routes in and around the Philippines recorded in 2004

IV. ARCHIPELAGIC BASELINES AND THE SOUTHEAST ASIAN REGION

The greatest challenge to Philippine implementation of UNCLOS through the enactment of archipelagic baselines, however, is not legal, but geopolitical. Depending on how conservatively or liberally we apply the rules in UNCLOS, we may project the maximum extent of our maritime zones much farther into the South China Sea than ever before or maintain the status quo (See Figure 7). Since our neighbors, particularly Vietnam, China, and Malaysia, also have their interests and prospective maritime zones within that area, they can be expected to act in such a way as to preserve their own interests. REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 387

Figure 7. Philippine archipelagic baseline options pending in Congress 388 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

The fact that there are competing claims to territory, sovereignty, and jurisdiction over both island and marine areas within the South China Sea makes the problem even more complicated. Thus, it is not only a matter of being able to find a mutually acceptable median boundary between two States, which is difficult enough as it is, but resolving a wide range of complex issues, claims, and counterclaims between at least five States. In order to ensure that our interests are protected, acting within this context requires a very careful and well- thought strategy not only in law but in foreign policy and the conduct of our relations with neighboring States. The popular clamor and support for the drawing of Philippine archipelagic baselines that enclose the main archipelago and the entire Kalayaan Island Group and Scarborough Shoal, indicated in Representative Cuenco’s House Bill No. 3216 and Senator Pimentel’s Senate Bill No. 2144, is a maximalist position that on the surface encloses the greatest geographic area. But it is based on a number of erroneous assumptions, such as that the action must be taken before a deadline and that it “strengthens” Philippine sovereignty. Neither is correct. The option furthermore is no longer feasible, because it requires the building of new structures in the Kalayaan Island Group which is not permitted under the 2002 ASEAN-China Declaration of Conduct,37 an agreement the Philippines itself spearheaded to prevent further complicating the South China Sea disputes through the addition of artificial structures in the area. By pushing our potential maritime spaces further into the South China Sea than ever before, and enclosing islands that are claimed by other States, the Philippines also ensures that the new archipelagic baselines system will be subjected to diplomatic protests by the other States, which directly undermines any legal effect the baselines may have on

37 Declaration on the Conduct of Parties in the South China Sea. Phnom Penh. November 4, 2002. Available from ASEAN website (last accessed June 25, 2008). REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE NATIONAL TERRITORY: AN INTERNATIONAL LAW AND POLICY PERSPECTIVE 389 foreign States. If the new Philippine baselines are protested, then the maritime zones they generate are again left in limbo and uncertainty, a situation no better than what we had before. Moreover, in the long term, politically and practically, the Philippines will find it extremely difficult to negotiate any peaceful settlement of the territorial issues since any compromise fixes our negotiating options to only one single position. Legislating the maximalist position will only complicate and prolong the territorial issues in the South China Sea, and not contribute toward their settlement. The executive position which encloses only the main archipelago and leaves the Kalayaan lsland Group and Scarborough Shoal as separate islands is indeed a minimalist position, and minimizes changes to the status quo. But, it also has a better chance in international law. It avoids protests that would jeopardize the integrity of the baselines around the rest of the Philippine archipelago. It limits the effect of such protests to the islands themselves and thus permits the Philippines to exercise its sovereignty and jurisdiction over other areas unhindered. It also helps to rationalize and harmonize the configuration of the Philippine maritime zones with international law in a manner acceptable to the international community. Maintaining an island regime around the Kalayaan lsland Group also provides more flexibility in the long term to the Philippines in seeking the peaceful solution of territorial issues because it can then develop more options for compromise without having to involve the status of the rest of the Philippine archipelago. And all these can be validly done without affecting the current status of Philippine sovereignty over the Kalayaan Island Group.

V. C ONCLUSION

From an international law perspective, the key issue for the country is not how much maritime area will be enclosed, but which action is more likely to be considered valid. Maritime 390 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I sovereignty and jurisdiction are not created by simply drawing on a map; they must also be recognized and accepted by other States, in addition to conforming to the rules and principles that have already been agreed upon in UNCLOS. If not, then they will be continually challenged and will never be settled. We shall never get any support for them, and much of what we think we can do may be nothing more than mere illusions. If we are to act in ways that affect other members of the international community, or if we want them to support our actions and strengthen our hand in the face of stronger competitors, we simply cannot continue merely asserting things without finding acceptance from the rest of the world. But this is more than a question of international law. What makes it most challenging for us is the fact that our use and implementation of UNCLOS have unavoidable impacts on the maritime zones of all our neighboring countries, and have definite implications on the navigational interests of the rest of the world. Enacting a new baselines law, whatever the final configuration, will shape the geopolitics of the Southeast Asian region for years to come, but not necessarily change the status of Philippine sovereignty over the KIG or Scarborough Shoal. Whether a new law perpetuates or aggravates the regional issues to spur further contestation, or opens the door for cooperation and settlement, is the international responsibility that attaches to its enactment. We can choose to be a leader or a troublemaker; what happens in the region has impacts on the rest of the world. This is the broader national interest involved, and the true gravity of the act of establishing our baselines. We decide not only the future of our country, but that of Southeast Asia as well. REACTIONS ON WHY THERE IS AN IMMEDIATE NEED TO ENACT A BILL AMENDING REPUBLIC ACT NO. 3046, AS AMENDED, TO CONFORM TO THE CONVENTION ON THE LAW OF THE SEA 391

Reactions on Why There is an Immediate Need to Enact a Bill Amending Republic Act No. 3046, as Amended,

to Conform to the Convention∗ on the Law of the Sea

Atty. Estelito P. Mendoza

Former Minister of Justice and Solicitor General Estelito P. Mendoza obtained his Preparatory and Legal Education and Bachelor of Laws degree from the University of the Philippines, and his Master of Laws degree from Harvard University in 1954. Admitted to the Philippine Bar in 1953, he was in private law practice until 1971 when he was appointed as Undersecretary of Justice. He continued to serve as: Solicitor General (1972–1986); He was also a Professorial Minister of Justice/Attorney Lecturer in Law at the University (1984–1986); Member, National of the Philippines (1954–1973) and Assembly (1978–1980; 1984– a member of organizations such 1985); and Provincial Governor of as: Phi Kappa Phi Honor Society, Pampanga (1980–1986). He also Phi Gamma Mu; Upsilon Sigma served as Chairman of the Sixth Phi, Rotary Club of Manila, (legal) Committee, 31st Session Philippine Bar Association, (1976) of the UN General Assembly; Integrated Bar of the Philippines, Chairman of the Special Committee Manila Polo Club, Philippine on the Charter of the United Society of International Law, Nations and the Strengthening of American Society of International the Role of the Organization Law, and the Harvard Club of the (1980). Philippines.

∗ Delivered at the Third Distinguished Lecture, Series of 2008, held on June 27, 2008, at the Far Eastern University, Manila, published in the 11 PHILJA JUDICIAL JOURNAL 31, 132–143 (2008). 392 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

I. INTRODUCTION

here should be no doubt about the Philippine territory.1 It is our good fortune that the Philippines consists of T islands in the middle of the sea. We have no land with borders adjacent to other countries; consequently, no border conflicts.2 While the territory of a state consists generally of land, including its internal waters, such as rivers and lakes; in our case, under the archipelagic principle which we have adopted,3 and now explicitly recognized in Part IV of the Law of the Sea Convention (LOSC), the islands comprising the Philippine archipelago, together with the water between the islands, are an integrated whole which, with the Kalayaan Island Group, constitute our territory.

In the Anglo-Norwegian Fisheries case, decided in 1951 by the International Court of Justice (ICJ), recognition was given to “coastal” archipelagos which allowed the state to draw straight baselines around the outermost points of a coastal archipelago and “tie” it to the mainland coast. This is what Norway had done. Although whether island archipelagos should enjoy a special regime was much debated upon in the 1980 Hague Conference and the 1958 Conference on the Law of the Sea, it was not until the 1982 Convention on the Law of the Sea4

1 See Article 1, 1935, 1973 and 1987 Constitutions. 2 Landlocked countries, of which there are 42 of the approximately 190 states, particularly have the problem. 3 Article 1, 1973 and 1987 Constitutions; Republic Act No. 3046. 4 The Law of the Sea Convention came into force on November 16,1994. Its text was adopted on April 30, 1982, by 130 votes to four, with 17 abstentions. As of June 2008, 155 states ratified and acceded to the Convention. REACTIONS ON WHY THERE IS AN IMMEDIATE NEED TO ENACT A BILL AMENDING REPUBLIC ACT NO. 3046, AS AMENDED, TO CONFORM TO THE CONVENTION ON THE LAW OF THE SEA 393 was there explicit recognition, in international law, of “island archipelagos,”5 such as ours. As early as 1961, however, we had formally adopted the principle by enacting Republic Act No. 3046 entitled “An Act Defining the Baselines of the Territorial Sea of the Philippines.”

But we do have common borders in regard maritime areas over which we are sovereign or have rights or jurisdiction. When the distance over water which separates us from another state is less than 400 nautical miles from our respective baselines, we have a common border as to our, and the other state’s, exclusive economic zone. And, when the area within our exclusive economic zone does not overlap with the exclusive economic zone of another state, we would have a border separating our exclusive economic zone from the international seabed area, referred to in the LOSC, as the area “beyond the limits of national jurisdiction.”6

While we would not have, therefore, any border or boundary conflicts on land, we may have maritime boundary conflicts as to overlapping maritime zones with neighboring states, like Malaysia and Indonesia, and possibly, with the international seabed area.

Allow me to comment on two points:

a. Whether there is a need to enact legislation amending RA No. 3046, as amended by RA No. 5446, so as to make the baselines of the Philippine archipelago conform to the Law of the Sea Convention, particularly its Article 47; and b. Whether the baselines should now include as a single archipelago, the Philippine archipelago enclosed by the

5 Part IV. 6 Article 1(i). 394 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

baselines in RA No. 3046, as amended, and the Kalayaan Group of Islands.7 I proceed from three premises, as follows: a. On matters of sovereignty or jurisdiction over areas beyond the land territory of a State, such as the territorial sea and exclusive economic zone, the best, and perhaps the only assurance, that a state’s sovereignty and jurisdiction over such areas will be respected by other states, is that its sovereignty and jurisdiction are in accord with international law. Only states with the power to enforce their sovereignty and jurisdiction over such areas, such as the United States, can assert claims not necessarily in accord with international law and enforce them; b. The value of rules and principles of international law which vest rights over the sea and its resources adjacent to a territory to the exclusion of other states, principally the territorial sea, and now, the exclusive economic zone, lies in their recognition and acceptance by the international community; and c. We maintain our adherence to the 1982 Convention on the Law of the Sea.

II. THE NEED FOR AMENDING REPUBLIC ACT NO. 3046 IS IMMEDIATE

While Article 46 of the LOSC defines an “archipelagic state” and an “archipelago,” the status of an “archipelago” with the rights arising therefrom under Article 49, do not arise ipso facto from such fact.

7 Declaring Certain Areas Part of the Philippine Territory and Providing for Their Government and Administration, Presidential Decree No. 1596, enacted on June 11, 1978. REACTIONS ON WHY THERE IS AN IMMEDIATE NEED TO ENACT A BILL AMENDING REPUBLIC ACT NO. 3046, AS AMENDED, TO CONFORM TO THE CONVENTION ON THE LAW OF THE SEA 395

Article 47 provides:

ART. 47. Archipelagic Baselines. 1. An archipelagic State may draw straight archipelagic baselines (emphasis ours) joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. x x x x While Article 49 provides:

Under the above provisions, the archipelagic state has the option of vesting in its “archipelago” the status of an “archipelago” under Part IV of the LOSC. That option is exercised by drawing the “straight baselines” provided in Article 47. If the archipelagic state does not draw the baselines provided in Article 47, then the islands comprising the archipelago will be regarded merely as “islands” under Article 121. The waters between the islands will not be regarded as “archipelagic waters” subject to sovereign rights of the archipelagic state under Article 49, but depending on the distance between the islands, will be regarded as territorial sea or high seas. Should the islands be separated from each other by more than 24 nautical miles (each island generating a territorial sea of 12 nautical miles), other states would enjoy in the seas beyond the territorial sea of each island the “freedom of the high seas” provided in Article 87. Article 48 of the LOSC provides as follows:

ART. 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with Article 47. To establish the limits of our territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf, we need to have baselines drawn in accordance with Article 47. Without such baselines, the status of the Philippine archipelago as an “archipelago” under Article 46(b) of the LOSC and the exercise of resulting sovereign rights under Article 49 will be in question. Moreover, the limits of our territorial sea, contiguous zone, and exclusive economic zone may not be clearly defined. The need, therefore, to amend RA No. 3046, as amended, to conform to the requirements of the LOSC is evident and immediate. Unless we do so, we will not be assured of REACTIONS ON WHY THERE IS AN IMMEDIATE NEED TO ENACT A BILL AMENDING REPUBLIC ACT NO. 3046, AS AMENDED, TO CONFORM TO THE CONVENTION ON THE LAW OF THE SEA 397 recognition by the international community of the status of the Philippine “archipelago” as an “archipelago,” the enjoyment of the rights incident thereto provided in Article 49, and the definition of the limits of our territorial sea, contiguous zone and exclusive economic zone.

III. WHETHER THE BASELINES SHOULD NOW INCLUDE AS A SINGLE ARCHIPELAGO, OR THE PHILIPPINE ARCHIPELAGO ENCLOSED BY THE BASELINES IN REPUBLIC ACT NO. 3046, AS AMENDED, AND THE KALAYAAN GROUP OF ISLANDS

The Law of the Sea Convention recognizes “archipelagic states”8 which means a “state constituted wholly by one or more archipelagos and may include other islands.”9 In order that we may have the status of an “archipelagic state,” we may simply amend RA No. 3046 to conform to Article 47 of the LOSC, so that the “archipelago” enclosed by the baselines under RA No. 3046 will have the status of an “archipelago” and the Philippines as an “archipelagic state” under the LOSC.

Two ways of dealing with the problem are reflected in bills now pending enactment by the House of Representatives and the Senate, as follows: (a) To maintain the “archipelago” enclosed by the baselines in RA No. 3046 but amending the baselines to conform to Article 47 and to consider the “Kalayaan Group of Islands” as “islands” under Article 121 of the Law of the Sea Convention, or (b) To consider both the “archipelago” enclosed by the baselines in RA No. 3046, as amended, and the Kalayaan Group of Islands, as a single archipelago by drawing straight baselines connecting the outermost points of

8 Part IV. 9 Article 46(a). 398 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

the outermost islands of both the Philippine archipelago and the Kalayaan Group of Islands. I support the first alternative for the following reasons: a. Article 46(b) defines an “archipelago” as follows:

ART. 46. Use of terms. For the purpose of this Convention: x x x x b. archipelago means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. There can be no question that the “Philippine archipelago,” as we have always known it, and enclosed by the baselines in RA No. 3046, is an “archipelago” under the above definition. But whether that “archipelago” and the Kalayaan Group of Islands, together, constitute an “archipelago” is uncertain. It must be remembered that the “Kalayaan Group of Islands” came to be part of the Philippines only upon the enactment on June 11, 1978 of PD No. 1596. It has never, through the centuries of its existence, been regarded as part of the Philippine archipelago. b. Under Article 47, it is in fact required, that the baselines “shall not depart to any appreciable extent from the general configuration of the archipelago.” This makes more emphatic that what are inclosed by the baselines is an “archipelago” with a configuration as such. c. Technical studies have shown that there is no tie-point with low tide elevation (bare at low tide) that could connect the Kalayaan Group of Islands with the main archipelago. REACTIONS ON WHY THERE IS AN IMMEDIATE NEED TO ENACT A BILL AMENDING REPUBLIC ACT NO. 3046, AS AMENDED, TO CONFORM TO THE CONVENTION ON THE LAW OF THE SEA 399

d. Several, in fact a majority, of the basepoints are located in islands presently occupied by other countries (not the Philippines). It is absurd, indeed ridiculous, that basepoints of our arhipelagic baselines would be on islands occupied by other states, albeit without our consent. With the above recognition that the baselines are in accord with Article 47 of the Law of the Sea Convention is a huge problem. They most certainly will be disputed by the countries who now occupy the majority of the islands in the Kalayaan Group. Should any part of the baselines, particularly those that connect the Kalayaan Group of Islands to the Philippine archipelago, be found not in accord with Article 47, it may nullify not only the baselines linking the Kalayaan Group of Islands to the main archipelago but the entire baselines enclosing the Philippines. On the other hand, it is in our interest that we assure that the Philippine archipelago, as we have always known it, and enclosed by the baselines under RA No. 3046, as amended, is invulnerable to any question. That way, we are assured that the Philippine archipelago enclosed by the baselines under RA No. 3046, as amended, will have the recognition of the international community. To dissipate any apprehension that we have abandoned our sovereignty over the Kalayaan Group of Islands, we may explicitly acknowledge in whatever legislation is enacted that the Kalayaan Group of Islands shall be regarded as a “regime of islands” under Article 121 of the Law of the Sea Convention. We must face the reality that our sovereignty over the Kalayaan Group of Islands is disputed by neighboring states, principally China and Vietnam. Majority of the islands composing the Kalayaan Group of Islands are occupied by these countries.10 10 Based on information, as best as I am able to obtain, more than 20 islands are occupied by Vietnam, about 10 islands by China, 5 by Malaysia, 1 by Taiwan, and 9 by the Philippines. 400 PHILJA JUDICIAL JOURNAL VOL 13:36 2011 I BOOK I

Vietnam occupies the biggest number of islands. We must assure that whatever problem to which the Kalayaan Group of Islands is presently exposed will not affect the Philippine archipelago, as we have always known it, the principal territory comprising the Republic of the Philippines, enclosed by the baselines under RA No. 3046, as amended.

IV. CONCLUDING OBSERVATIONS

The subject matter of this afternoon’s lecture is “The Metes and Bounds of the Philippine Territory.” Because our country is an archipelago or consists of islands, we do not have any land borders adjoining other states. If by “territory,” therefore, “land” is contemplated, I venture to say that we hardly have any “Metes and Bounds” problem. But if by “territory” is contemplated which, in my view, it should, sovereignty or jurisdiction over maritime areas adjoining the land territory, we do have a problem of “Metes and Bounds.”11 The problem regrettably is principally attributable to our failure to amend RA No. 3046, as amended by RA No. 5046, so that the baselines therein defined will conform to Article 47 of the LOSC. This requires technical expertise available from the National Mapping and Resource

11 The DFA has advised that our neighboring countries, particularly Vietnam, Japan, China, Taiwan, Malaysia and Indonesia have by legislation drawn their baselines and that our exclusive economic zone overlaps with theirs. The archipelagic baselines would be critical in the negotiation and settlement of these overlapping maritime boundaries. The baselines constitute the reckoning point by which the outer limits of the Philippine maritime jurisdictions are initially determined. It is only upon the initial determination of the outer limits of the Philippine maritime jurisdictions that we would be able to first, determine the parameters of our negotiating position (e.g., maximum and minimum position); and second, to actually proceed with the negotiation and conclusion of maritime boundary delimitation agreements with the neighboring countries. As a matter of fact, the Republic of the Philippines-Indonesia Maritime Delimitation negotiations had to be suspended last December because the Philippines has yet to enact a baselines law in accordance with Article 47 of UNCLOS 111.

REACTIONS ON WHY THERE IS AN IMMEDIATE NEED TO ENACT A BILL AMENDING REPUBLIC ACT NO. 3046, AS AMENDED, TO CONFORM TO THE CONVENTION ON THE LAW OF THE SEA 401

Information Authority (NAMRIA). Indeed, NAMRIA has already identified and proposed the amendments to assure compliance with Article 47 of the LOSC which are already reflected in bills pending in Congress. No valid reasons exist for our procrastination of many years.