Republic of the Philippines
G.R. Nos. 183591, 183752, 183893 and 183951 - THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR 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. 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.
October 14, 2008
SEPARATE CONCURRING OPINION
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 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.
Section 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 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":
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)
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 20 August 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
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 24 September 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
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 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
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.
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.
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. 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.
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.
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 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.
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.
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 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 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 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 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 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, 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 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 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 4 August 2008, the day before its scheduled signing in Kuala Lumpur, Malaysia, there could have been no participation by 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 27 August 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:
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;
(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. (Emphasis supplied)
The provisions of Article 8 were designed to prevent 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.
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:
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 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 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 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 4 August 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, 5 August 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 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 1 March 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 program of autonomy for Filipino Muslims, consistent with the Peace Agreement entered into by the GRP and the MNLF on 02 September 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 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 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 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 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:
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 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.
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.
ANTONIO T. CARPIO
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)
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."
4 Some of these agreements are mentioned in the Terms of Reference of the MOA-AD. In their Compliance dated 22 September 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 7 May 2002; and (2) Implementing Guidelines on the Security Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 dated 7 August 2001.
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 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.
11 TSN, 29 August 2008, pp. 190-191 and 239.
12 Id. at 297.
13 Id. at 296-298.
14 Memorandum of Respondents dated 24 September 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, 29 August 2008, p. 276.
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)
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;
(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)
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.
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.
(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)
35 Section 6, Article VIII of the Constitution provides: "The Supreme Court shall have administrative supervision over all courts and the personnel thereof."
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 ninety 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 seventy 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 thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment." (Emphasis supplied)
39 See note 1.
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)
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.
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 twelve (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 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 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, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant." (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 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 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."
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.
70 Philippine Daily Inquirer, 27 August 2008; see also http://newsinfo.inquirer.net/inquirerheadlines/ nation/view/20080827-157044/Respect-our-domain-lumad-tell-Moro-rebs.
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)
74 See note 70; TSN, 29 August 2008, p. 183.
75 Adopted overwhelmingly by the United Nations General Assembly by a vote of 143-5 on 13 September 2007. Those who voted against were the United States, Canada, Australia and New Zealand.
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 5 September 2008.
78 Paragraph 4 on Resources of the MOA-AD; see note 18.
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."
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, United Nations Charter). The Philippines signed on 18 January 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.
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:
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;
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 24 September 2008, p. 7.
90 People v. Vera, G.R. No. 26539, 28 February 1990, 182 SCRA 800, 809.
91 TSN, 29 August 2008, pp. 154-155.
92 The President's Memorandum of Instructions dated 8 September 2003 reiterated verbatim paragraph 1 of the Memorandum of Instructions from the President dated 1 March 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 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, http://www.afn.ca/article.asp?id=59.
95 TSN, 29 August 2008, pp. 718 and 721.
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)
99 TSN, 29 August 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 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."
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, 1 October 2004.
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