The State: Territory – The international law concept of association , “a state within a state”

Case: Province of North Cotabato vs. Government of the Republic of the Philippines, G.R. No.
185591, October 14, 2008, Carpio Morales, J.

Facts:

On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic
Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement of the Ancestral
Domain Aspect of the GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

Invoking the right to information on matters of public concern, the petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MA-AD and to
prohibit the slated signing of the MOA-AD and the holding of public consultation thereon. They also
pray that the MOA-AD be declared unconstitutional. The Court issued a TRO enjoining the GRP
from signing the same.

Issues:

1. Whether or not the constitutionality and the legality of the MOA is ripe for adjudication;
2. Whether or not there is a violation of the people's right to information on matters of public concern
(Art 3 Sec. 7) under a state policy of full disclosure of all its transactions involving public interest
(Art 2, Sec 28) including public consultation under RA 7160 (Local Government Code of 1991)
3. Whether or not the signing of the MOA, the Government of the Republic of the Philippines would
be binding itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)

Ruling:

1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local

government units or communities affected constitutes a departure by respondents from their mandate
under EO No. 3. Moreover, the respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David
v. Macapagal- Arroyo.

2. Yes. The Court finds that there is a grave violation of the Constitution involved in the matters of
public concern (Sec 7 Art III) under a state policy of full disclosure of all its transactions involving
public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local Government Code
of 1991).
(Sec 7 ArtIII) The right to information guarantees the right of the people to demand information,
while Sec 28 recognizes the duty of officialdom to give information even if nobody demands. The
complete and effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the
highest order. In declaring that the right to information contemplates steps and negotiations leading to
the consummation of the contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.

E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local
levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential
Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and concerned sectors of society.

3.
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;

Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest in the
BJE the status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution.

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

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. It is
not merely an expanded version of the ARMM, the status of its relationship with the national
government

being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it
meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent
population, a defined territory, a government, and a capacity to enter into relations with other states.

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

The defining concept underlying the relationship between the national government and the BJE being
itself contrary to the present Constitution, it is not surprising that many of the specific provisions of
the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the
laws. The BJE is more of a state than an autonomous region. But even assuming that it is covered by
the term “autonomous region” in the constitutional provision just quoted, the MOA-AD would still be
in conflict with it.

b) to revise or amend the Constitution and existing laws to conform to the MOA:

The MOA-AD provides that “any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon the signing of a Comprehensive Compact and upon
effecting the

necessary changes to the legal framework,” implying an amendment of the Constitution to

accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution .

It will be observed that the President has authority, as stated in her oath of office, only to preserve and
defend the Constitution. Such presidential power does not, however, extend to allowing her to change
the Constitution, but simply to recommend proposed amendments or revision. As long as she limits
herself to recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

The “suspensive clause” in the MOA-AD viewed in light of the above-discussed standards.

Given the limited nature of the President’s authority to propose constitutional amendments, she
cannot guarantee to any third party that the required amendments will eventually be put in place, nor
even be submitted to a plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent powers are vested.

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)

This strand begins with the statement that it is “the birthright of all Moros and all Indigenous peoples
of Mindanao to identify themselves and be accepted as ‘Bangsamoros.’” It defines “Bangsamoro
people” as

the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the
Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of
full blood, including their spouses.

Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not only
“Moros” as traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its
adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be
respected. What this freedom of choice consists in has not been specifically defined. The MOA-AD
proceeds to refer to the

“Bangsamoro homeland,” the ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights of occupation. Both parties to the MOA-AD acknowledge that ancestral
domain does not form part of the public domain.

Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure
for the recognition and delineation of ancestral domain, which entails, among other things, the
observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or
any government agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations beforeany project or program critical to the environment and human ecology
including

those that may call for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically
result to the diaspora or displacement of a great number of inhabitants from their total environment.

CONCLUSION:
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No.
7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a
virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.