Constitutionality of MOA-AD

Province of North Cotabato v.
Government of the Republic of the Philippines

October 14, 2008, GR 183591
Constitutionality of MOA-AD
FACTS:
Peace negotiations between the GRP1 and MILF2 began in 1996. Formal peace talks between
the parties were held in Tripoli, Libya in 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. In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD3 in its final form, which was set to
be signed on August 5, 2008. Several petitions were filed seeking, among others, to restrain the
signing of the MOA-AD. Petitions allege, among others, that the provisions of the MOA-AD violate the
Constitution.
The MOA-AD mentions the “Bangsamoro Juridical Entity” (BJE) to which it grants the authority
and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro. The territory
of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial,
fluvial and alluvial domains, including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.
The Parties to the MOA-AD stipulate that:

 The BJE shall have jurisdiction over all natural resources within its “ internal waters,”
Atty. ARIS S. MANGUERA

defined as extending fifteen (15) kilometers from the coastline of the BJE area;
 The BJE shall also have “territorial waters,” which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines (RP) south east and south
west of mainland Mindanao;
 Within these territorial waters, the BJE and the “Central Government” (used
interchangeably with RP) shall exercise joint jurisdiction, authority and management over
all natural resources.
 The BJE is free to enter into any economic cooperation and trade relations with foreign
countries and shall have the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include aggression against the
GRP. The BJE may also enter into environmental cooperation agreements.
 The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to “take necessary steps to ensure
the BJE’s participation in international meetings and events” like those of the ASEAN and
the specialized agencies of the UN.
 The BJE is to be entitled to participate in Philippine official missions and delegations for
the negotiation of border agreements or protocols for environmental protection and
equitable sharing of incomes and revenues involving the bodies of water adjacent to or
between the islands forming part of the ancestral domain.
The MOA-AD further provides for the sharing of minerals on the territorial waters between the
Central Government and the BJE, in favor of the latter, through production sharing and economic
cooperation agreement. The activities which the Parties are allowed to conduct on the territorial
waters are enumerated, among which are the exploration and utilization of natural resources,
regulation of shipping and fishing activities, and the enforcement of police and safety measures.
The MOA-AD describes the relationship of the Central Government and the BJE as
“associative,” characterized by shared authority and responsibility. And it states that the
1
2
Moro Islamic Liberation Front: 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.
3
Memorandum of Agreement on Ancestral Domain
structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact. The BJE is
granted the power to build, develop and maintain its own institutions inclusive of civil service,
electoral, financial and banking, education, legislation, legal, economic, police and internal
security force, judicial system and correctional institutions, the details of which shall be discussed
in the negotiation of the comprehensive compact.
Paragraph 1 on CONCEPTS AND PRINCIPLES of MOA-AD states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as “Bangsamoros”. The Bangsamoro
people refers to those who are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at the time of
conquest or colonization of its descendants whether mixed or of full blood. Spouses
and their descendants are classified as Bangsamoro. The freedom of choice of the
Indigenous people shall be respected.
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.
ISSUE :
Whether MOA-AD is constitutional.
HELD:
Main Opinion, J. Carpio-Morales:
No. The MOA-AD is inconsistent with the Constitution and laws as presently worded:
1. The concept of association is not recognized under the present Constitution.
2. The MOA-AD would not comply with Article X Section 20 of the Constitution
3. Article II, Section 22 of the Constitution must also be amended if the scheme envisioned
in the MOA-AD is to be effected.
4. The MOA-AD is also inconsistent with R.A. No. 9054 (The Organic Act of the ARMM)
5. The MOA-AD is also inconsistent with IPRA
6. Even if the UN DRIP were considered as part of the law of the land pursuant to Article II,
Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so
as to render its compliance with other laws unnecessary.
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.
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.
Article X, Section 18 of the Constitution provides that “[t]he creation of the autonomous
region shall be effective when approved by a majority of the votes cast by the constituent units in
a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas
voting favorably in such plebiscite shall be included in the autonomous region.”
The BJE is more of a state than an autonomous region. But even assuming that it is covered by
the term “autonomous region” in the constitutional provision just quoted, the MOA-AD would still
be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte
which voted for inclusion in the ARMM during the 2001 plebiscite – Baloi, Munai, Nunungan,
Pantar, Tagoloan and Tangkal – are automatically part of the BJE without need of another
plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview.
That the present components of the ARMM and the above-mentioned municipalities voted for
inclusion therein in 2001, however, does not render another plebiscite unnecessary under the
Constitution, precisely because what these areas voted for then was their inclusion in the ARMM,
not the BJE.
The MOA-AD would not comply with Article X Section 20 of the Constitution
Even if BJE is considered as an autonomous region, the MOA-AD would require a constitutional
amendment in order to vest BJE with treaty making power. While Article X Section 20 provides
that the organic acts of the autonomous regions shall provide legislative powers over such other
matters authorized by law for the promotion of the general welfare of the people, the same must
be subject to the provisions of the Constitution. And since under our constitutional system, only
the President has the sole authority to negotiate with other states as regards treaty-making, then
a constitutional amendment is needed to grant a similar power to BJE.
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in
the MOA-AD is to be effected.
That constitutional provision states: “The State recognizes and promotes the rights of indigenous
cultural communities within the framework of national unity and development.” (Underscoring
supplied) An associative arrangement does not uphold national unity. While there may be a
semblance of unity because of the associative ties between the BJE and the national
government, the act of placing a portion of Philippine territory in a status which, in international
practice, has generally been a preparation for independence , is certainly not conducive to
national unity.
The MOA-AD is also inconsistent with R.A. No. 9054 (The Organic Act of the ARMM)
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of
“Bangsamoro people” used in the MOA-AD.
The use of the term Bangsamoro in the MOA-AD sharply contrasts with that found in the Article
X, Section 3 of the Organic Act, which, rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between
Bangsamoro people and Tribal peoples, as follows:
“As used in this Organic Act, the phrase “indigenous cultural community” refers to
Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic
conditions distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and
who have retained some or all of their own social, economic, cultural, and
political institutions.”
The MOA-AD is also inconsistent with IPRA.

IPRA,lays down the prevailing procedure for the delineation and recognition of ancestral
domains. The MOA-AD’s manner of delineating the ancestral domain of the Bangsamoro people
is a clear departure from that procedure. By paragraph 1 of TERRITORY of the MOA-AD, Parties
simply agree that, subject to the delimitations in the agreed Schedules, “[t]he Bangsamoro
homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial
and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region.”
International law has long recognized the right to self-determination of “peoples,” understood not
merely as the entire population of a State but also a portion thereof. The people’s right to self-
determination should not, however, be understood as extending to a unilateral right of secession.
In a historic development last September 13, 2007, the UN General Assembly adopted the United
Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295 the Philippines being included among those in favor, The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing the right to
autonomy or self-government. Self-government, as used in international legal discourse
pertaining to indigenous peoples, has been understood as equivalent to “internal self-
determination.”
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be
regarded as embodying customary international law– still, the obligations enumerated therein do
not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of
the BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific
provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the
different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous
peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the
State which will provide protection for indigenous peoples against acts like the forced
dispossession of their lands – a function that is normally performed by police officers. If the
protection of a right so essential to indigenous people’s identity is acknowledged to be the
responsibility of the State, then surely the protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of
the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in
Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired. Moreover, the UN DRIP,
while upholding the right of indigenous peoples to autonomy, does not obligate States to grant
indigenous peoples the near-independent status of an associated state.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section
2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its
compliance with other laws unnecessary.
Separate Opinion, J. Ynares-Santiago:

The substantive provisions of the MOA-AD directly contravene the fundamental law and existing
statutes. Otherwise, it would not be necessary to effect either statutory or constitutional
amendments to make it effective. Moreover, as correctly pointed out by petitioners, the GRP
panel exceeded its authority when it categorically undertook to make these statutory and
constitutional changes in order to fully implement the MOA-AD.
The GRP panel committed itself to the full implementation of the MOA-AD by effecting changes to
the legal framework. Respondents cannot deny this by saying that the parties further undertook to
negotiate a Comprehensive Compact or a final peace agreement. Although it may be conceded
that the parties have yet to enter into a Comprehensive Compact subsequent to the signing of the
MOA-AD, the nature of this compact shows that the MOA-AD was intended as the controlling
document for the essential terms of the Comprehensive Compact. Paragraphs 3 and 7 of the
MOA-AD provisions on Governance invariably describe the Comprehensive Compact as merely
embodying details for the effective enforcement and actual implementation of the MOA-AD.
Separate Opinion, J. Carpio:

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. The provisions of Article 8 were designed to prevent cultural
genocide of indigenous peoples. This will happen if the Lumads are identified from birth as
Bangsamoros and their ancestral domains are absorbed into the ancestral domain of the
Bangsamoros. (See the full separate opinion of J. Carpio for the list of needed constitutional
changes for the implementation of MOA-AD)
Separate Opinion, J. Tinga:

Any legally binding commitment to amend the Constitution can only come from the political
institutions and the sovereign people who are empowered by the charter to amend the
Constitution. The President nor any other member or office of the executive branch does not have
the power to effect changes to the Constitution even if he wanted to in the paramount interest of
the country and of the people. Any commitment to any entity on the part of the President or his
political appointees to amend the Constitution is inherently ultra vires, because the Executive
Branch does not have the innate power to effectuate such changes on its own. Neither does the
President have the power to bind to positive action those whom the Constitution entrusts the
power to amend the charter, namely; the Congress, the delegates to a constitutional convention,
and the electorate.
Constitutional order cannot be sacrificed for expediency, even if in the name of peace in
Mindanao. Assuming that the executive branch has in good faith become intractably convinced
that it is necessary to amend the Constitution in order to obtain lasting peace in Mindanao, the
consequent step should not be to make promises it has no power alone to keep, hoping against
hope that the Congress and the voters would ultimately redeem the promises. Since
constitutional amendments are involved, the ability of the executive branch to undertake any
legally binding commitment to amend the Constitution can only be recognized, if at all, with the
prior appropriate authorization of Congress, acting with the specified majorities provided in
Section 1(1), Article XVII of the Constitution. Under such a mechanism, any constitutionally-
oriented concessions offered by the Philippine government would contemporaneously bear the
preliminary seal of approval by the people or institutions authorized to propose amendments to
the Constitution, subject to final ratification by the people through a plebiscite.
Separate Opinion, J. Reyes:

There can be no doubt as to the marching orders by the President. In negotiating with the MILF,
the GRP Panel should use the Constitution as the parameter. Too, the preservation of the
territorial integrity of the Republic of the Philippines should be maintained at all times. The GRP
Panel, however, appears to have failed to follow those instructions. The commitment of the
GRP Panel to the MILF to change the Constitution to conform to the MOA-AD violates the
doctrine of separation of powers. Moreover, MOA-AD contains numerous provisions that
appear unconstitutional.
The following are the defects of the MOA-AD:

1. THe MOA-AD creates a new political subdivision, the so-called Bangsamoro Juridical
Entity (BJE). This is not permitted by the Constitution, which limits the political
subdivisions of the Republic of the Philippines into provinces, cities, municipalities,
barangays and autonomous regions.
2. The creation of the BJE is prohibited even assuming that the MOA-AD only attempts to
create the BJE as an autonomous region. Only Congress is empowered to create an
autonomous region.
3. The MOA-AD creates the Bangsamoro Homeland as an ancestral domain. However,
there is non-compliance with the procedure laid down under RA No. 8371, otherwise
known as the Indigenous Peoples Rights Act (IPRA).
4. Under the MOA-AD, the BJE is vested with jurisdiction, powers and authority over land
use, development, utilization, disposition and exploitation of natural resources within the
Bangsamoro Homeland. In doing so, respondents in effect surrendered to the BJE
ownership and gave it full control and supervision over the exploration, development,
utilization over the natural resources which belong to the State. This is in clear
contravention of the Regalian Doctrine now expressed under Article XII, Section 2 of the
1987 Constitution.
5. The MOA-AD also grants to the BJE powers to enter into any economic cooperation and
trade relations with foreign countries. It compels the Republic of the Philippines to
ensure the BJE’s participation in international meetings and events, participation in
Philippine official missions and delegations engaged in the negotiation of, among others,
border agreements, sharing of incomes and revenues. Thus, by assenting to install an
intra sovereign political subdivision independent of the single sovereign state that is the
Republic of the Philippines, respondents violated not only the Constitution, Article V,
Section 2 of RA No. 6734, but also the unitary system of government of the Republic of
the Philippines.
6. Without the benefit of any factual determination, the MOA-AD dismembers parts of
Mindanao, turning it into a geographical dalmatian. It creates a Bangsamoro Homeland
with a specified land mass, maritime, terrestrial, fluvial and alluvial dominions, (with
definite internal and territorial waters), aerial domain, atmospheric space, and even
distinct “territorial waters” within the RP baselines.
7. The MOA-AD grants to the BJE plenary power to undo executive acts and delegate to
the BJE the authority to revoke existing proclamations, issuances, policies, rules and
guidelines, forest concessions, timber licenses, contracts or agreements in the utilization
of natural resources, mining concessions, land tenure instruments. This constitutes an
undue delegation of executive power. The President may delegate its executive
power only to local government units or an administrative body attached to the executive
department. The delegation of power to the BJE, on the other hand, is delegation of
executive power to an entirely different juridical entity that is not under its
supervision or control. That is impermissible.
8. The MOA-AD empowers the BJE to build, develop, and maintain its own institutions.
This includes civil service, electoral, financial and banking institutions, education,
legislation, legal, economic, police, internal security force, and judicial system. This is
anathema to several provisions of the Constitution, namely: (1) the authority of the
Commission on Elections to administer all election laws in the Philippines; (2) that there
shall only be one police force, national in scope to be administered and controlled by the
National Police Commission; (3) that the defense of the Republic shall belong exclusively
to the Armed Forces of the Philippines; (4) that judicial power shall be vested in one
Supreme Court and in such other inferior courts as may be established by law; (5) that
there shall only be one independent central monetary authority, the Bangko Sentral ng
Pilipinas; and (6) that there shall be one independent economic planning agency.
ISSUE:
Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any
violation of law or grave abuse of discretion on their part, precisely because it stipulates that the
provisions thereof inconsistent with the laws shall not take effect until these laws are amended.
They cite paragraph 7 of the MOA-AD strand on GOVERNANCE:
The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon signing of a Comprehensive Compact and
upon effecting the necessary changes to the legal framework with due regard to
non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
HELD:
Main Opinon, J. Carpio-Morales: There is a stipulation that keeps many controversial provisions
of the MOA-AD from coming into force until the necessary changes to the legal framework are
effected. Notwithstanding the suspensive clause, however, respondents, by their mere act of
incorporating in the MOA-AD the provisions thereof regarding the associative relationship
between the BJE and the Central Government, have already violated the Memorandum of
Instructions From The President dated March 1, 2001, which states that the “negotiations shall be
conducted in accordance with x x x the principles of the sovereignty and territorial integrity of
the Republic of the Philippines.” Establishing an associative relationship between the BJE and
the Central Government is, for the reasons already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent status already prevailing.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which
cannot be reconciled with the present Constitution and laws “shall come into force upon signing of
a Comprehensive Compact and upon effecting the necessary changes to the legal framework.”
This stipulation does not bear the marks of a suspensive condition – defined in civil law as a
future and uncertain event – but of a term. It is not a question of whether the necessary changes
to the legal framework will be effected, but when. That there is no uncertainty being
contemplated is plain from what follows, for the paragraph goes on to state that the contemplated
changes shall be “with due regard to non derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact.”
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the
legal framework contemplated in the MOA-AD – which changes would include constitutional
amendments, as discussed earlier. It bears noting that, by the time these changes are put in
place, the MOA-AD itself would be counted among the “prior agreements” from which there could
be no derogation. What remains for discussion in the Comprehensive Compact would merely be
the implementing details for these “consensus points” and, notably, the deadline for effecting the
contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the

President’s authority to propose constitutional amendments, it being a virtual guarantee that
the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to
conform to all the “consensus points” found in the MOA-AD. Hence, it must be struck down as
unconstitutional.

Under the MOA-AD, the Executive branch assumes the mandatory obligation to amend the
Constitution to conform to the MOA-AD.
The Executive branch 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.
QUESTION:
What is the extent of the President’s power to conduct peace negotiations?
ANSWER:
Main Opinion, J. Carpio-Morales: The President’s power to conduct peace negotiations is
implicitly included in her powers as Chief Executive and Commander-in-Chief. he President – in
the course of conducting peace negotiations – may validly consider implementing even those
policies that require changes to the Constitution, but she may not unilaterally implement them
without the intervention of Congress, or act in any way as if the assent of that body were
assumed as a certainty.
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.
QUESTION:
Would MOA-AD have given rise to a binding international law obligation on the part of the
Philippines to change its Constitution in conformity thereto on the ground that it may be
considered either as a binding agreement under international law, or a unilateral declaration of
the Philippine government to the international community that it would grant to the Bangsamoro
people all the concessions therein stated?
ANSWER:
Main Opinion, J. Carpio-Morales: NO. The MOA-AD, would have included foreign dignitaries as
signatories. In addition, representatives of other nations were invited to witness its signing in
Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have
had the status of a binding international agreement had it been signed. However, the fact that the
MOA-AD would have been signed by representatives of States and international organizations
not parties to the Agreement would not have sufficed to vest in it a binding character under
international law. public statements of a state representative may be construed as a unilateral
declaration only when the following conditions are present: the statements were clearly
addressed to the international community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements would be detrimental to the
security of international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstance.
The Philippine panel did not draft the MOA-AD with the clear intention of being bound thereby to
the international community as a whole or to any State, but only to the MILF. While there were
States and international organizations involved, one way or another, in the negotiation and
projected signing of the MOA-AD, they participated merely as witnesses or, in the case of
Malaysia, as facilitator. As held in the Lomé Accord case, the mere fact that in addition to the
parties to the conflict, the peace settlement is signed by representatives of states and
international organizations does not mean that the agreement is internationalized so as to create
obligations in international law.
The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents’ almost consummated act of guaranteeing amendments to the
legal framework is, by itself, sufficient to constitute grave abuse of discretion . The grave
abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of
a state within a state, but in their brazen willingness to guarantee that Congress and the
sovereign Filipino people would give their imprimatur to their solution. Upholding such an
act would amount to authorizing a usurpation of the constituent powers vested only in Congress,
a Constitutional Convention, or the people themselves through the process of initiative, for the
only way that the Executive can ensure the outcome of the amendment process is through an
undue influence or interference with that process.
Separate Opinon, J. Azcuna:

Had the MOA-AD been signed as planned, it would have provided a basis for a claim in an
international court that the Philippines was bound by its terms at the very least as a unilateral
declaration made before representatives of the international community with vital interests in the
region.
Whether the case of Australia v. France or that of Burkina Faso v. Mali, is the one applicable, is
not solely for this Court to decide but also for the international court where the Philippines could
be sued. While we may agree that the Philippines should not be considered bound, the
international court may rule otherwise. There is need to consult the people before risking that
kind of outcome. Finally, precedents are not strictly followed in international law, so that an
international court may end up formulating a new rule out of the factual situation of our MOA-AD,
making a unilateral declaration binding under a new type of situation, where, for instance, the
other party is not able to sign a treaty as it is not yet a State, but the declaration is made to a
“particular recipient” and “witnessed” by a host of sovereign States.
Separate Opinion, J. Ynares-Santiago:

Had it been signed by the parties, it would have bound the government to the creation of a
separate Bangsamoro state having its own territory, government, civil institutions and armed
forces. The concessions that respondents made to the MILF would have given the latter leverage
to demand that the Bangsamoro homeland be recognized as a state before international bodies.
It could insist that the MOA-AD is in fact a treaty and justify compliance with its provisions, under
the international law principle of pacta sunt servanda. The sovereignty and territorial integrity of
the Philippines would have been compromised.
SUMMARY of the Main Opinion, J. Carpio-Morales

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the
present legal framework will not be effective until that framework is amended, the same does not
cure its defect. The inclusion of provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions FromThe President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded, it virtually guarantees that the
necessary amendments to the Constitution and the laws will eventually be put in place. Neither
the GRP Peace Panel nor the President herself is authorized to make such a guarantee.
Upholding such an act would amount to authorizing a usurpation of the constituent powers vested
only in Congress, a Constitutional Convention, or the people themselves through the process of
initiative, for the only way that the Executive can ensure the outcome of the amendment process
is through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral declaration
binding on the Philippines under international law, respondents’ act of guaranteeing amendments
is, by itself, already a constitutional violation that renders the MOA-AD fatally defective.
Province of North Cotabato v. Government of the Republic of the Philippines
October 14, 2008, GR 183591
On Right to Information and Provisions on Public Consultations
Facts:
signing of the MOA-AD.
The Province of North Cotabato and Vice-Governor Emmanuel Piñol filed a petition invoking the
right to information on matters of public concern, petitioners seek to compel respondents to
disclose and furnish them the complete and official copies of the MOA-AD including its
attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the
contents of the MOA-AD and the holding of a public consultation thereon.
Issue 1:
Did respondents violate constitutional and statutory provisions on public consultation and the right
to information when they negotiated and later initialed the MOA-AD?
Held:
YES. As regards this issue, the respondents violated the following legal provisions:
-Article II, Section 28
-Article III Section 7
-Executive Order No. 3
-Local Government Code
-IPRA
Article III, Section 7

Article III, Section 7 provides, “The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.”
Access to information of general interest aids the people in democratic decision-making by giving
them a better perspective of the vital issues confronting the nation. so that they may be able to
criticize and participate in the affairs of the government in a responsible, reasonable and effective
manner. The MOA-AD subject of the present cases is of public concern, involving as it does
the sovereignty and territorial integrity of the State, which directly affects the lives of the
public at large. Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract.
Article II, Section 28
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Article II, Section 28 provides, “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 policy of full public disclosure enunciated in above-quoted Section 28 complements the
right of access to information on matters of public concern found in the Bill of Rights. The right to
information guarantees the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if nobody demands. the effectivity of
the policy of public disclosure need not await the passing of a statute.
Executive Order no. 3

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. E.O. No. 3 contemplates the conduct of “continuing” consultations.
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to
“[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners as
well as to render appropriate and timely reports on the progress of the comprehensive peace
process.” E.O. No. 3 mandates the establishment of the NPF to be “the principal forum for the
PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and concerned
sectors of society on both national and local levels, on the implementation of the comprehensive
peace process, as well as for government[-]civil society dialogue and consensus-building on
peace agenda and initiatives.” In fine, E.O. No. 3 establishes petitioners’ right to be consulted on
the peace agenda, as a corollary to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion . The PAPP committed grave abuse of
discretion when he failed to carry out the pertinent consultation. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of the legal authority.
Local Government Code

Local Government Code (LGC) of 1991 declares it a State policy to “require all national agencies
and offices to conduct periodic consultations with appropriate local government units, non-
governmental and people's organizations, and other concerned sectors of the community before
any project or program is implemented in their respective jurisdictions”
The LGC chapter on intergovernmental relations provides:

Prior Consultations Required. – No project or program shall be implemented by government
authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with,
and prior approval of the sanggunian concerned is obtained.
The above-stated policy and above-quoted provision of the LGU apply only to national programs
or projects which are to be implemented in a particular local community. Among the programs
and projects covered are those that are critical to the environment and human ecology including
those that may call for the eviction of a particular group of people residing in the locality where
these will be implemented. 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.
IPRA
The ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making in
matters which may affect their rights, lives and destinies. The MOA-AD, an instrument
recognizing ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms
ordained in IPRA, which entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs. The IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise. In proceeding to make a sweeping declaration on ancestral domain,
without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of their authority. (J. Carpio-Morales)
Dissenting Opinion, J. Brion:

Even with a signed MOA-AD, I do not believe that the immediate deprivation they fear and their
due process concerns are valid based alone on the terms of this aborted agreement. Under
these terms, the MOA-AD’s execution and signing are but parts of a series of acts and
agreements; its signing was not be the final act that would render its provisions operative. The
MOA-AD itself expressly provides that the mechanisms and modalities for its implementation will
still have to be spelled out in a Comprehensive Compact and will require amendments to the
existing legal framework. This amendatory process, under the Constitution, requires that both
Congress and the people in their sovereign capacity be heard. Thus, the petitioners could still
fully ventilate their views and be heard even if the MOA-AD had been signed.
Assuming that the constitutional provisions on the right to information and the duty of disclosure
may immediately be effective, these provisions have to recognize, other than those expressly
provided by Congress, “reasonable safeguards on the national interest.” In constitutional law, this
can only refer to safeguards inherent from the nature of the state transaction, the state interests
involved, and the power that the state may bring to bear, specifically, its police power.
The disclosure of information with respect to the peace process in general and the MOA-AD
negotiation in particular should not be interchanged and discussed from the prisms of
information and disclosure as if they were one and the same. The peace process as embodied in
E.O. No. 3 relates to the wider government effort to secure peace in Mindanao through various
offices and initiatives under the Office of the President interacting with various public and private
entities at different levels in Mindanao. The peace negotiation itself is only a part of the overall
peace process with specifically named officials undertaking this activity. Thus, the consultations
for this general peace process are necessarily wider than the consultations attendant to the
negotiations proper that has been delegated to the GRP Negotiating Panel. The dynamics and
depth of consultations and disclosure with respect to these processes should, of course, also be
different considering their inherently varied natures.
Issue 2:
May Executive privilege be invoked?
Main Opinion:
The invocation of the doctrine of executive privilege is not proper under the premises. The
argument defies sound reason when contrasted with E.O. No. 3’s explicit provisions on continuing
consultation and dialogue on both national and local levels. The executive order even recognizes
the exercise of the public’s right even before the GRP makes its official recommendations or
before the government proffers its definite propositions. It bears emphasis that E.O. No. 3 seeks
to elicit relevant advice, information, comments and recommendations from the people through
dialogue. AT ALL EVENTS, respondents effectively waived the defense of executive privilege in
view of their unqualified disclosure of the official copies of the final draft of the MOA-AD. By
unconditionally complying with the Court’s August 4, 2008 Resolution, without a prayer for the
document’s disclosure in camera, or without a manifestation that it was complying therewith ex
abundante ad cautelam.
October 14, 2008, GR 183591
On the Issue of Ripeness
Facts:
Petitions allege that respondents GRP Panel and (Presidential Adviser for the Peace Process) PAPP
Esperon drafted the terms of the MOA-AD without consulting the local government units or communities
affected, nor informing them of the proceedings. It is argued that such omission, by itself, constitutes a
departure by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD
provides that “any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes
to the legal framework,” implying an amendment of the Constitution to accommodate the MOA-AD. It is
argued that, this stipulation, in effect, guaranteed to the MILF the amendment of the Constitution.
Issue:
The Solicitor General argues that there is no justiciable controversy ripe for adjudication. According to him
the unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative
enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply put,
the MOA-AD remains to be a proposal that does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly complied with. According to the Solicitor
General, considering the preliminary character of the MOA-AD, there are no concrete acts that could
possibly violate petitioners’ and intervenors’ rights since the acts complained of are mere contemplated
steps toward the formulation of a final peace agreement.
Is the case ripe for adjudication?
Held:
Main Opinion
The petitions are ripe for adjudication. The failure of respondents to consult the local government
units or communities affected constitutes a departure by respondents from their mandate under
E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.
Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. By
the mere approval of the challenged action, the dispute is said to have ripened into a judicial
controversy even without any overt act. That the act in question is not yet effective does not
negate ripeness. As the petitions allege acts or omissions on the part of respondents that
exceed their authority, by violating their duties under E.O. No. 3 10 and the provisions of the
Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
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Executive Order No. 3: “Defining Policy and Administrative Structure: For Government's Comprehensive Peace
Efforts.” EO No. 3 provides for a continuing consultation and dialogue on both national and local levels.
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a
branch of government is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the dispute. (J. Carpio-
Morales)
Separate Concurring Opinion, CJ. Puno:

Yes. Where a controversy concerns fundamental constitutional questions, the threshold must be
adjusted to allow judicial scrutiny, in order that the issues may be resolved at the earliest stage
before anything irreversible is undertaken under cover of an unconstitutional act.
It is evident that the Court is confronted with a MOA-AD that is heavily laden with self-executing
components. Far from the representation of the Solicitor General, the MOA-AD is not a mere
collection of consensus points
Here are the self-executory provisions of the MOA-AD:
The MOA-AD provides that “the Parties affirm that the core of the BJE shall constitute the present
geographic area of the ARMM, including the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan
and Tangkal in the province of Lanao del Norte that voted for inclusion in the ARMM during the 2001
plebiscite.”
The MOA-AD enumerate the powers that the BJE possesses within its area. The BJE is granted
powers of governance which it can exercise without need of amendments to be made to the
Constitution or existing law or without imposing any condition whatsoever.
The MOA-AD also gives the BJE the unconditional right to participate in international meetings and
events, e.g., ASEAN meetings and other specialized agencies of the United Nations. It grants BJE the
right to participate in Philippine official missions and delegations that are engaged in the negotiation of
border agreements or protocols for environmental protection, equitable sharing of incomes and
revenues, in addition to those of fishing rights. Again, these rights are given to the BJE without imposing
prior conditions such as amendments to the Constitution, existing law or the enactment of new
legislation.
The MOA-AD provides that “without derogating from the requirements of prior agreements, the
Government stipulates to conduct and deliver, within twelve (12) months following the signing of
the Memorandum of Agreement on Ancestral Domain, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A x x x the Parties shall endeavor to
complete negotiations and resolve all outstanding issues on the Comprehensive Compact within
fifteen (15) months from signing of the MOA-AD.” Once more, it is evident that no conditions
were imposed with respect to the conduct of a plebiscite within twelve months following the
signing of the MOA-AD. The provision starkly states that within twelve months, the government
will conduct and deliver a plebiscite covering areas under Category A of the MOA-AD.
Dissenting Opinion, J. Velasco:

The parties to the MOA do not have perfected and enforceable contract. As things stand, the line
dividing the negotiation stage and the execution stage which would have otherwise conferred the
character of obligatoriness on the agreement is yet to be crossed. In a very real sense, the
MOA-AD is not a document, as the term is juridically understood, but literally a piece of paper
which the parties cannot look up to as an independent source of obligation, the binding prestation
to do or give and the corollary right to exact compliance. Yet, the petitioners would have the
Court nullify and strike down as unconstitutional what, for all intents and purposes, is a non-
existent agreement. Like a bill after it passes third reading or even awaiting the approval
signature of the President, the unsigned draft MOA-AD cannot plausibly be the subject of judicial
review, the exercise of which presupposes that there is before the court an actual case or, in fine,
a justiciable controversy ripe for adjudication.
October 14, 2008, GR 183591
On the Issue of Mootness
Facts:
signing of the MOA-AD. On August 4, 2008, the Supreme Court issued a Temporary Restraining
Order commanding the respondents to cease and desist from formally signing the MOA-AD
On August 28, 2008, the Executive Department pronounced that it would no longer sign the MOA-
AD. On the last day of the oral arguments, the Solicitor General, declared that the Executive
Department, specifically, respondent Executive Sec. Ermita has declared that the MOA-AD “will
not be signed in this form, or in any other form.” Moreover, on September 3, 2008, President
Arroyo dissolved the GRP Peace Panel.
Issue:
Are the petitions mooted?
Held:
Main Opinion:
The Court finds that the present petitions provide an exception to the “moot and academic”
principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional
character of the situation and paramount public interest; (c) the need to formulate controlling
principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of
repetition yet evading review.
(a) There is no gainsaying that the petitions are imbued with paramount public interest, involving
a significant part of the country’s territory and the wide-ranging political modifications of affected
LGUs.
(b) Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out
the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which
could contain similar or significantly drastic provisions. While the Court notes the word of the
Executive Secretary that the government “is committed to securing an agreement that is both
constitutional and equitable because that is the only way that long-lasting peace can be assured,”
it is minded to render a decision on the merits in the present petitions to formulate controlling
principles to guide the bench, the bar, the public and, most especially, the government in
negotiating with the MILF regarding Ancestral Domain .
(c) There is a reasonable expectation that petitioners, particularly the Provinces of North
Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, will again be subjected to the same problem in the
future as respondents’ actions are capable of repetition, in another or any form.
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The MOA-AD cannot be considered a mere “list of consensus points,” especially given its
nomenclature, the need to have it signed or initialed by all the parties concerned on August 5,
2008, and the far-reaching Constitutional implications of these “consensus points,” foremost of
which is the creation of the BJE. There is a commitment on the part of respondents to amend and
effect necessary changes to the existing legal framework for certain provisions of the MOA-AD to
take effect. Consequently, the present petitions are not confined to the terms and provisions of
the MOA-AD, but to other on-going and future negotiations and agreements necessary for its
realization. The petitions have not, therefore, been rendered moot and academic simply by the
public disclosure of the MOA-AD.
The MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli
Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli
Agreement is the third such component to be undertaken following the implementation of the
Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in
May 2002. Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008
to the Solicitor General, has stated that “no matter what the Supreme Court ultimately decides[,]
the government will not sign the MOA[-AD],” mootness will not set in in light of the terms of the
Tripoli Agreement 2001.
(J. Carpio-Morales)
Separate Concurring Opinion: CJ. Puno

The press statements of the Presidential Adviser on the Peace Process, Gen. Hermogenes
Esperon, Jr., are clear that the MOA-AD will still be used as a major reference in future
negotiations. For another, the MILF considers the MOA-AD a “done deal,” hence, ready for
implementation. On the other hand, the peace panel may have been temporarily dismantled but
the structures set up by the Executive and their guidelines which gave rise to the present
controversy remain intact. With all these realities, the petitions at bar fall within that
exceptional class of cases which ought to be decided despite their mootness because the
complained unconstitutional acts are “capable of repetition yet evading review.”

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,” is
erroneous. Once the Court acquires jurisdiction over a case, its jurisdiction continues until final
termination of the case. The claim of respondents that the President never authorized the GRP
Panel to sign the MOA-AD 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.
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.
Separate Concurring Opinion, J. Ynares-Santiago

The Court will decide cases, otherwise moot and academic, if: (1) there is a grave violation of the
Constitution; (2) the situation is exceptional in character and paramount public interest is
involved; (3) the constitutional issues raised requires formulation of controlling principles to guide
the bench, the bar and the public; and (4) the case is capable of repetition yet evading review. All
of these circumstances are present in the cases at bar. It is beyond cavil that these petitions
involve matters that are of paramount public interest and concern. As shown by recent events, the
MOA-AD has spawned violent conflicts in Mindanao and has polarized our nation over its real
import and effects. The controversy over the agreement has resulted in unnecessary loss of lives,
destruction of property and general discord in that part of our country. Strong reasons of public
policy and the importance of these cases to the public demands that we settle the issues
promptly and definitely, brushing aside, if we must, technicalities of procedure.
The petitions also allege that the GRP panel committed grave violations of the Constitution when
it negotiated and agreed to terms that directly contravene the fundamental law. The basic issue
which emerged from all the assertions of the parties is not only whether the MOA-AD should be
disclosed or signed at all but, more significantly, whether the GRP panel exceeded its powers in
negotiating an agreement that contains unconstitutional stipulations. Considering that it has been
widely announced that the peace process will continue, and that a new panel may be constituted
to enter into similar negotiations with the MILF, it is necessary to resolve the issue on the GRP
panel’s authority in order to establish guiding and controlling principles on its extent and limits. By
doing so, a repetition of the unfortunate events which transpired in the wake of the MOA-AD can
hopefully be avoided.
There is also the possibility that an agreement with terms similar to the MOA-AD may again be
drafted in the future. Indeed, respondents cannot prevent this Court from determining the extent
of the GRP panel’s authority by the simple expedient of claiming that such an agreement will not
be signed or that the peace panel will be dissolved. There will be no opportunity to finally the
settle the question of whether a negotiating panel can freely stipulate on terms that transgress our
laws and our Constitution. It can thus be said that respondents’ act of negotiating a peace
agreement similar to the MOA-AD is capable of repetition yet evading review.
Separate Opinion, J. Tinga:

As a matter of law, the petitions were mooted by the unequivocal decision of the Government of
the Philippines, through the President, not to sign the challenged Memorandum of Agreement on
Ancestral Domain (MOA-AD).
A usual exception to the moot and academic principle is where the case is capable of repetition
yet evading review. In this case, the challenged act is not a unilateral act that can be reproduced
with ease by one person or interest group alone. To repeat the challenged act herein, there would
have to be a prolonged and delicate negotiation process between the Government and the MILF,
both sides being influenced by a myriad of unknown and inconstant factors such as the current
headlines of the day. Assuming that the act can be repeated at all, it cannot be repeated with any
ease, there being too many cooks stirring the broth. And further assuming that the two sides are
able to negotiate a new MOA-AD, it is highly improbable that it would contain exactly the same
provisions or legal framework as the discarded MOA-AD.
Dissenting Opinion, J. Leonardo-De Castro:

The statement of the Solicitor General that the MOA-AD will not be signed renders the case moot
and academic.
Separate Opinion, J. Chico-Nazario:

In light of the pronouncement of the Executive Department to already abandon the MOA, the
issue of its constitutionality has obviously become moot.
The MOA has not even been signed, and will never be. Its provisions will not at all come into
effect. The MOA will forever remain a draft that has never been finalized. It is now nothing more
than a piece of paper, with no legal force or binding effect. It cannot be the source of, nor be
capable of violating, any right. The instant Petitions, therefore, and all other oppositions to the
MOA, have no more leg to stand on. They no longer present an actual case or a justiciable
controversy for resolution by this Court.
It is beyond the power of the Court to enjoin the Executive Department from entering into
agreements similar to the MOA in the future, as what petitioners and other opponents of the MOA
pray for. Such prayer once again requires this Court to make a definitive ruling on what are mere
hypothetical facts. A decree granting the same, without the Court having seen or considered the
actual agreement and its terms, would not only be premature, but also too general to make at this
point. It will perilously tie the hands of the Executive Department and limit its options in
negotiating peace for Mindanao.
It is not within the province or even the competence of the Judiciary to tell the Executive
Department exactly what and what not, how and how not, to negotiate for peace with insurgents.
The Executive Department, under its residual powers, is tasked to make political decisions in
order to find solutions to the insurgency problem, the Court should respect the political nature of
the issues at bar and exercise judicial restraint until an actual controversy is brought before it.
Separate Opinion, J. Reyes:

The petitions and petitions-in-intervention have become moot due to supervening events.
However, they should be decided given the exceptional circumstances.
It is hornbook doctrine that courts will decide cases, otherwise moot, when (1) there is a grave
violation of the Constitution; (2) the exceptional character of the situation and the paramount
public interest involved demand; (3) the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and (4) the case is capable of
repetition yet evading review.
Dissenting Opinion, J. Velasco:

There is really no MOA-AD to speak of since its perfection or effectivity was aborted by
supervening events, to wit: the TRO the Court issued enjoining the Kuala Lumpur signing of the
MOA and the subsequent change of mind of the President not to sign and pursue the covenant.
To repeat, there is, from the start, or from the moment the first petition was interposed, no actual
justiciable controversy to be resolved or dismissed, the MOA-AD having been unsigned. Be that
as it may, there can hardly be any constitutional issue based on actual facts to be resolved with
finality, let alone a grave violation of the Constitution to be addressed. Surely the Court cannot
reasonably formulate guiding and controlling constitutional principles, precepts, doctrines or rules
for future guidance of both bench and bar based on a non-existing ancestral domain agreement
or by anticipating what the executive department will likely do or agree on in the future in the
peace negotiating table.
The allegations of unconstitutionality are, for now, purely conjectural. The MOA-AD is only a part
of a lengthy peace process that would eventually have culminated in the signing of a
Comprehensive Compact. Per my count, the MOA-AD makes reference to a Comprehensive
Compact a total of eight times. The last paragraph of the MOA-AD even acknowledges that,
before its key provisions come into force, there would still be more consultations and
deliberations needed by the parties
Dissenting Opinion, J. Nachura:

It is axiomatic that courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest involved; third, when the constitutional issue raised requires formulation
of controlling principles to guide the bench, the bar and the public; or fourth, when the case is
capable of repetition yet evasive of review.
As to the first exception, there is no violation of the Constitution that will justify judicial review
despite mootness, because the MOA-AD has not been signed – and will not be signed. The
MOA-AD is, as of today, non-existent. Thus, as it is, these dreaded constitutional infractions are,
at best, anticipatory, hypothetical or conjectural.
Neither will the second exception apply. The issue of paramount public interest will arise only IF
the MOA-AD is signed. With the Peace Panel dissolved, and with the unequivocal
pronouncement of the President that the MOA-AD will not be signed, there is no occasion to
speak of the exceptional or extraordinary character of the controversy as would render the case
ripe for resolution and susceptible of judicial determination.
Then, there is the March 1, 2001 Memorandum of Instructions from the President, followed by the
Memorandum of Instructions dated September 8, 2003. Common to the instructions is the
provision that the negotiation shall be conducted “in accordance with the mandate of the
Constitution, the Rule of Law, and the Principles of Sovereignty and Territorial Integrity of the
Republic of the Philippines.” These are adequate guidelines for the GRP Peace panel; it would be
superfluous for the Court to issue guidelines which, presumably, will be similar to the ones
already in existence, aside from possibly trenching on the constitutional principle of separation of
powers. If the respondents-members of the GRP Peace Panel, in the conduct of the negotiation,
breached these standards or failed to heed the instructions, it was not for lack of guidelines. In
any event, the GRP Peace Panel is now disbanded, and the MOA-AD unsigned and “not to be
signed.” There is no necessity for this Court to issue its own guidelines as these would be, in all
probability, repetitive of the executive issuances.
The theory of “capable of repetition yet evading review” may be invoked only when this Court has
jurisdiction over the subject matter.
Dissenting Opinion, J. Brion:

After the respondents declared that the MOA-AD would not be signed, there was nothing left to
prohibit and no rights on the part the petitioners continued to be at risk of violation by the MOA-
AD.
The exceptions to the “moot and academic” principle should not apply to this case. Where an
issue is moot on its face, the application of any of the exceptions should be subjected to a strict
test because it is a deviation from the general rule. The Court should carefully test the exceptions
to be applied from the perspectives both of legality and practical effects, and show by these
standards that the issue absolutely requires to be resolved.
Mootness and Paramount Public Interest. While issues affecting the national territory and
sovereignty are sufficiently weighty to command immediate attention, answers and solutions to
these types of problems are not all lodged in the Judiciary; more than not, these answers and
solutions involve matters of policy that essentially rest with the two other branches of government
under our constitutional system, with the Judiciary being called upon only where disputes and
grave abuse of discretion arise in the course applying the terms of the Constitution and in
implementing our laws.
Need for Guidelines from the Court. The present petitions and the intervening developments
do not present similar questions as David v. Arroyo that necessitate clarification. Since the MOA-
AD does not exist as a legal, effective, and enforceable instrument, it can neither be illegal nor
unconstitutional. For this reason, I have not bothered to refute the statements and arguments
about its unconstitutionality.
The “Capable of Repetition and Evading Review” Exception. The history of “emergencies” in
David v. Arroyo and Sanlakas v. Executive Secretary, unfortunately, is not present in the petitions
at bar. Under these clear terms showing the Executive’s vision on how the peace process and the
negotiations shall proceed, I believe that it is fallacious to assume that any renewed negotiation
with the MILF will entail a repetition of the discarded MOA-AD. The likelihood that a matter will be
repeated does not mean that there will be no meaningful opportunity for judicial review so that an
exception to mootness should be recognized. For a case to dodge dismissal for mootness under
the “capable of repetition yet evading review” exception, two requisites must be satisfied: (1) the
duration of the challenged action must be too short to be fully litigated prior to its cessation or
expiration; and (2) there must be reasonable expectation that the same complaining party will be
subjected to the same action again.
The time constraint that justified Roe v. Wade does not inherently exist under the circumstances
of the present petition so that judicial review will be evaded in a future litigation. As this Court has
shown in this case, we can respond as fast as the circumstances require. There is nothing that
would bar the Court from making a concrete ruling in the future should the exercise of our judicial
power, particularly the exercise of the power of judicial review, be justified.
October 14, 2008, GR 183591
On the Issue of Locus Standi
Facts:
Issue:
Do the petitioners have locus standi?
Held:
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted in
David v. Macapagal-Arroyo.
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury
that they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included
in the intended domain of the BJE. These petitioners allege that they did not vote for their
inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners’ legal
standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III
would have no standing as citizens and taxpayers for their failure to specify that they would be
denied some right or privilege or there would be wastage of public funds. The fact that they are a
former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro,
respectively, is of no consequence. Considering their invocation of the transcendental
importance of the issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert
that government funds would be expended for the conduct of an illegal and unconstitutional
plebiscite to delineate the BJE territory. On that score alone, they can be given legal standing.
Their allegation that the issues involved in these petitions are of “undeniable transcendental
importance” clothes them with added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member of
the Senate and a citizen to enforce compliance by respondents of the public’s constitutional right
to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or
in the success or failure of either of the parties. He thus possesses the requisite standing as an
intervenor.
14
15
16
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of
Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of
the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and
member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they
failed to allege any proper legal interest in the present petitions. Just the same, the Court
exercises its discretion to relax the procedural technicality on locus standi given the paramount
public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an

advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; and
Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers,
allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the
petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein
stated. Such legal interest suffices to clothe them with standing.
J. Nachura:
The petitioners and petitioners-in-intervention claim locus standi with their invocation of the
transcendental importance of the issues involved and their assertion of public rights to information
and to consultation.
Considering that the Court has discretion to relax this procedural technicality, and given the liberal
attitude it has adopted in a number of earlier case, we acknowledge the legal standing of the
petitioners herein.

Constitutionality of MOA-AD

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Constitutionality of MOA-AD

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Province of North Cotabato v.

Government of the Republic of the Philippines

The Parties to the MOA-AD stipulate that:

Atty. ARIS S. MANGUERA

Paragraph 1 on CONCEPTS AND PRINCIPLES of MOA-AD states:

The concept of association is not recognized under the present Constitution.

The MOA-AD is also inconsistent with IPRA.

Separate Opinion, J. Ynares-Santiago:

Separate Opinion, J. Carpio:

Separate Opinion, J. Tinga:

Separate Opinion, J. Reyes:

The following are the defects of the MOA-AD:

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the

Separate Opinion, J. Carpio:

Separate Opinon, J. Azcuna:

Separate Opinion, J. Ynares-Santiago:

SUMMARY of the Main Opinion, J. Carpio-Morales

On Right to Information and Provisions on Public Consultations

Article III, Section 7

Article II, Section 28

Executive Order no. 3

Local Government Code

The LGC chapter on intergovernmental relations provides:

Dissenting Opinion, J. Brion:

On the Issue of Ripeness

Separate Concurring Opinion, CJ. Puno:

Here are the self-executory provisions of the MOA-AD:

Dissenting Opinion, J. Velasco:

On the Issue of Mootness

Separate Concurring Opinion: CJ. Puno

Separate Opinion, J. Carpio:

Separate Concurring Opinion, J. Ynares-Santiago

Separate Opinion, J. Tinga:

Dissenting Opinion, J. Leonardo-De Castro:

Separate Opinion, J. Chico-Nazario:

Separate Opinion, J. Reyes:

Dissenting Opinion, J. Velasco:

Dissenting Opinion, J. Nachura:

Dissenting Opinion, J. Brion:

On the Issue of Locus Standi

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an

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