Unconstitutionality of the Memorandum of Agreement on Ancestral Domain

The decision of the Supreme Court on the constitutionality of the aborted Memorandum of Agreement on Ancestral Domains hinges the ponencia on the extent of the discretionary power of the President, in pursuing peace negotiations with the Moro Islamic Liberation Front, whether it was done within the bounds prescribed by the Constitution, or with grave abuse of discretion which amounted to lack or in excess of jurisdiction.

This is also another battle ground regarding the claim of executive privilege by the Presidential Adviser on the Peace Process, although corollarily, but in relation to my research on the development of the doctrine of executive privilege in the country.

This case law post is also my contribution for Blog Action Day 2008.

The case at bar is as follows:

FACTS:

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.  However,   the signing of the MOA-AD between the GRP and the MILF was not to materialize,  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.  

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. Late in the administration of President Fidel Ramos, the GRP and the 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.  

However, talks broke down in 2000 which led to the "all-out war" of President Joseph Estrada against the MILF forces in Central and Southern Mindanao. When President Gloria Macapagal-Arroyo assumed office, she sought for the resumption of the peace talks with the help of then Malaysian Prime Minister Mahathir Mohammad. 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.

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.  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.

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.

ISSUE/S:

The parties were asked by the COurt to submit their respective position papers and memoranda on the issues at hand. Hence, the following issues were raised:

(1) Whether the petitions have become moot and academic?

(2) Whether the constitutionality and the legality of the MOA is ripe for adjudication?

(3) Whether respondent GRP 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 under a state policy of full disclosure of all its transactions involving public interest including public consultation under Republic Act No. 7160 (Local Government Code)?

(5) Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself:

1. to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law;
2. to revise or amend the Constitution and existing laws to conform to the MOA; and
3. concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No. 8371 (Indigenous People's Rights Act)

(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?

(7) Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of the Philippines?

But for the purposes of this article, I shall tackle only the substantive aspect of the case, namely items 3, 4 and 5.

RULING:

The people's right to information was violated by
non-disclosure of the Respondents of the salient points
of the MOA-AD

That the subject of the information sought in the present cases is a matter of public concern faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed 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.  

Intended as a “splendid symmetry” 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.

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 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. 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.

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. The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the people’s participation.

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.” 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. 

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-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.

Notable authors in international law describes that "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.  The MOA-AD 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, on any foreign affairs matter affecting them.

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. Even the mere concept animating many of the MOA-AD’s provisions, therefore, already requires for its validity the amendment of constitutional provisions.

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution.  It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.  

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it – which has betrayed itself by its use of the concept of association – runs counter to the national sovereignty and territorial integrity of the Republic.  

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

The Presidential Adviser on the Peace Process 
acted with grave abuse of discretion when it 
entered into with the MOA-AD without regard 
to the public's right to information

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 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.

DECRETAL PORTION:

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, CJ., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Azcuna, and Reyes, JJ., concur.
Corona, J., joined the Dissent of the  J. Tinga.
Tinga and Chico-Nazario, JJ., pls. see Separate Opinions
Velasco and Nachura, JJ., please see Dissenting Opinions
Leonardo-de Castro and Brion, JJ., please see Dissenting and Concurring Opinions

POLITICAL AND LEGAL IMPLICATION OF THIS DECISION

With the declaration that the MOA-AD is unconstitutional, any future agreements, of the same nature or shall include any or all of the provisions of the MOA-AD, would be meeting the same fate as this agreement. It also shattered the desire of the Bangsamoros, to negotiate an arrangement with the Philippine government, that would come nearest to their goal of independence. Hence, the only means they could secure such dream would either be: 

1. to negotiate for an enlarged ARMM and a greatly empowered autonomous region, within the framework of the current Constitution and the Local Government Code;
2. to advocate for a Charter Change and push for the shift from a Unitary to a Federal form of government, thus paving the way, for a Bangsamoro Federal State;
3. although it is not legally feasible, to secede from the Republic via revolution.

The far-reaching consequences of this case would test not only the creativity of the government in coming up with an alternative agreement in lieu of the junked MOA-AD to lure the MILF back to the negotiating table. The MILF would not agree to any drafts incompatible with this MOA. They shall clearly push for this or any similar agreement, or would likely use it as basis for any future concessions with the government.

Though it would be late in the day to blame anyone, the government peace panel should take the fall for this blunderbuss. Had they negotiated within the framework of the Constitution and the laws, we would not have been in this dilemna right now. The MILF has clearly been hungered by the concession the government is ready to give for the sake of a lasting peace in the South, and they shall not rest until an agreement within the context of the MOA-AD is concluded. Let me state that I fully respect the right of the Bangsamoro for self-determination, moreso their right to derive benefit from their ancestral lands. But I maintain that it must be an agreement that shall neither dismember any province nor sever any areas from the Republic of the Philippines.

Our development as a country is anchored on the advancement of our people. Poverty is not solved by segregating people and grouping them together according to race and creed. Neither shall it uplift the impoverished citizens among us. Proof of this is the predominantly Christian Manila and Luzon, and yet there are some Christians that are living a sub-standard existence. It is therefore not the solution to the long standing problem of poverty. The key is equalizing opportunities for all - in education, health, employment, social services and natural resources. We have made large leaps in the integration of our population. Though regionalism still tends to downplay miscellany, cultural diversity is one of our strongest points as a nation. Thus, the only thing remaining would be to redistribute the country's economic resources and invest in the welfare of the Filipino people.

Tolerance is a common characteristic that allowed us to live with one another for the last hundred years. We must not reverse the gains we have made as a nation, but we should also remember that the resolve of the people, particularly those in war-torn Mindanao, is still in hoping for peace - a long and lasting peace.