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G.R. No. 183591 - G.R. NOS. 183591, 183572, 183893, 183951 and 183962 - PUNO - SEPARATE CONCURRING OPINION : THE PROVINCE OF COTOBATO v. THE GOV'T OF THE REPUBLIC OF THE PHILIPPINES, ET AL.

G.R. No. 183591 - G.R. NOS. 183591, 183572, 183893, 183951 and 183962 - PUNO - SEPARATE CONCURRING OPINION : THE PROVINCE OF COTOBATO v. THE GOV'T OF THE REPUBLIC OF THE PHILIPPINES, ET AL.

PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. NO. 183591 : October 14, 2008]

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own behalf, Petitioners, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, Respondent.

[G.R. NO. 183752 : October 14, 2008]

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, Petitioners, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process, Respondent.

[G.R. NO. 183893 : October 14, 2008]

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, Petitioner, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary. Respondent.

[G.R. NO. 183951 : October 14, 2008]

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of the Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, Petitioners, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of Peace Process, Respondent.

[G.R. NO. 183962 : October 14, 2008]

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, Petitioners, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL, Respondents.

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, Petitioners-in-Intervention.

SEN. MANUEL A. ROXAS, Petitioners-in-Intervention.

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, Petitioners-in-Intervention,

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-AKBAR, Petitioners-in-Intervention.

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, Petitioner-in-Intervention.

RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF, Petitioner-in-Intervention.

CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of Palawan, Petitioners-in-Intervention.

MARINO RIDAO and KISIN BUXANI, Petitioners-in-Intervention.

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), Respondent-in-Intervention.

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), Respondent-in-Intervention.

SEPARATE CONCURRING OPINION

PUNO, C.J.:

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

I. Historical Roots

A historical perspective of our Muslim problem is helpful.

From time immemorial, an enduring peace with our Muslim brothers and sisters in Mindanao has eluded our grasp. Our Muslim problem exploded in March of 1968 when Muslim trainees were massacred by army officers at Corregidor. About 180 Muslim trainees had been recruited in the previous year as a part of a covert force named Jabidah,1 allegedly formed to wrest away Sabah from Malaysia. The trainees were massacred when they reportedly protested their unbearable training and demanded the return to their home.2 The Jabidah Massacre fomented the formation of Muslim groups clamoring for a separate Islamic state. One of these groups was the Muslim Independence Movement (MIM), founded by the then Governor of Cotabato, Datu Udtog Matalam.3 Another was the Nurul Islam, led by Hashim Salamat.

On September 21, 1972 Martial Law was declared by President Ferdinand E. Marcos. Among the reasons cited to justify martial law were the armed conflict between Muslims and Christians and the Muslim secessionist movement in the Southern Philippines.4 The imposition of martial law drove some of the Muslim secessionist movements to the underground. One of them was the Moro National Liberation Front (MNLF) headed by Nur Misuari. In 1974, the MNLF shot to prominence, when the Organization of Islamic Conference (OIC) officially gave it recognition. During the 5th ICFM, they strongly urged "the Philippines Government to find a political and peaceful solution through negotiation with Muslim leaders, particularly with representatives of the MNLF in order to arrive at a just solution to the plight of the Filipino Muslims within the framework of national sovereignty and territorial integrity of the Philippines"; and recognized "the problem as an internal problem with the Philippine Government to ensure the safety of the Filipino Muslims and the preservation of their liberties in accordance with the Universal Declaration of Human Rights."5

In December 1976, the Philippine government and the MNLF under the auspices of the OIC started their peace negotiation in Tripoli, Libya. It bore its first fruit when on January 20, 1977, the parties signed the Tripoli Agreement in Zamboanga City in the presence of the OIC Representative.

President Marcos immediately implemented the Tripoli Agreement. He issued Presidential Proclamation No. 1628, "Declaring Autonomy in Southern Philippines." A plebiscite was conducted in the provinces covered under the Tripoli Agreement to determine the will of the people thereat. Further, the legislature enacted Batasang Pambansa Blg. 20, "Providing for the Organization of Sangguniang Pampook (Regional Legislative Assembly) in Each of Regions IX and XII." President Marcos then ordered the creation of Autonomous Region IX and XII.

In the meanwhile, the MNLF continued enhancing its international status. It was accorded the status of an observer in Tripoli, Libya during the 8th ICFM. In the 15th ICFM at Sana'a, Yemen, in 1984, the MNLF's status was further elevated from a mere 'legitimate representative' to 'sole legitimate representative' of the Bangsamoro people.6

In April 1977, the peace talks between the Government of the Republic of the Philippines (GRP) and MNLF Talks collapsed. Schism split the MNLF leadership. The irreconcilable differences between Nur Misuari and Hashim Salamat led to the formation of the Moro Islamic Liberation Front (MILF), headed by Hashim Salamat. Thus, the Maguindanao-led MILF, parted ways with the Tausug-led MNLF.

In 1986, the People Power Revolution catapulted Corazon C. Aquino to the Presidency. Forthwith, she ordered the peace talks with the MNLF to resume. The 1987 Constitution was ratified by the people. It provided for the creation of the Autonomous Region of Muslim Mindanao through an act of Congress. But again the talks with the MNLF floundered in May 1987.7 Be that as it may, it was during President Aquino's governance that a culture of peace negotiations with the rebellious MNLF and MILF was cultivated.8 Thus, the Autonomous Region of Muslim Mindanao (ARMM) was created through Republic Act No. 6734. The law took effect on August 1, 1989.

Then came the presidency of President Fidel V. Ramos. He issued on September 15, 1993, Executive Order No., 125 (E.O. 125) which provided for a comprehensive, integrated and holistic peace process with the Muslim rebels. E.O. 125 created the Office of the Presidential Adviser on the Peace Process to give momentum to the peace talks with the MNLF.

In 1996, as the GRP-MNLF peace negotiations were successfully winding down, the government prepared to deal with the MILF problem. Formal peace talks started on January of 1997, towards the end of the Ramos administration. The Buldon Ceasefire Agreement was signed in July 19979 but time ran out for the negotiations to be completed.

President Joseph Estrada continued the peace talks with the MILF. The talks, however, were limited to cessation of hostilities and did not gain any headway. President Estrada gave both sides until December 1999 to finish the peace process.10 They did not meet the deadline. The year 2000 saw the escalation of acts of violence and the threats to the lives and security of civilians in Southern Mindanao. President Estrada then declared an "all-out war" against the MILF.11 He bowed out of office with the "war" unfinished.

Thereafter, President Gloria Macapagal Arroyo assumed office. Peace negotiations with the MILF were immediately set for resumption. Executive Order No. 3, was issued "Defining Policy and Administrative Structure: For Government's Comprehensive Peace Efforts." On March 24, 2001, a General Framework for the Resumption of Peace Talks between the GRP and the MILF was signed. Republic Act No. 905412 was also enacted on March 31, 2001 and took effect on August 14, 2001 to strengthen and expand the Autonomous Region of Muslim Mindanao. Through the Organic Act of 2001, six municipalities in Lanao del Norte voted for inclusion in the ARMM.

On June 22, 2001, the ancestral domain aspect of the GRP-MILF Tripoli Agreement was signed in Libya. Several rounds of exploratory talks with the MILF followed. Unfortunately, on April 2, 2003, Davao was twice bombed. Again, the peace talks were cancelled and fighting with the MILF resumed. On July 19, 2003 the GRP and the MILF agreed on "mutual cessation of hostilities" and the parties returned to the bargaining table. The parties discussed the problem of ancestral domain, divided into four strands: concept, territory, resources, and governance.

On February 7, 2006, the 10th round of Exploratory Talks between the GRP and the MILF ended. The parties issued a joint statement of the consensus points of the Ancestral Domain aspect of GRP-MILF Tripoli Agreement on Peace of June 22, 2001. The Joint Statement provides that:

"Among the consensus points reached were:

'Joint determination of the scope of the Bangsamoro homeland based on the technical maps and data submitted by both sides;

'Measures to address the legitimate grievances of the Bangsamoro people arising from the unjust dispossession and/or marginalization;

'Bangsamoro people's right to utilize and develop their ancestral domain and ancestral lands;

'Economic cooperation arrangements for the benefit of the entire Bangsamoro people."

On July 27, 2008, a Joint Statement on the Memorandum of Agreement on Ancestral Domain (MOA-AD) was signed by Chairperson Rodolfo C. Garcia on behalf of the GRP Peace Panel, and Mohagher Iqbal on behalf of the MILF Panel. In the Joint Statement, it was declared that the final draft of the MOA-AD has already been initialed. It was announced that "both sides reached a consensus to initial the final draft pending its official signing by the Chairmen of the two peace panels in early August 2008, in Putrajaya, Malaysia."13

The Joint Statement triggered the filing of the petitions at bar. These Petitions, sought among others, to restrain the signing of the MOA-AD. On August 4, 2008, a day before the intended signing of the initialed MOA-AD, this Court issued a Temporary Restraining Order stopping the signing of the MOA-AD. Several petitions-in-intervention were also filed praying for the same relief. On August 8, 2008 and September 1, 2008, the respondents through the Solicitor General, submitted official copies of the initialed MOA-AD to the Court and furnished the petitioners and petitioners-in-intervention with copies of the same.

All the petitions were heard by the Court in three separate days of oral arguments. In the course of the arguments, the Solicitor General informed the Court that the MOA-AD will not be signed "in its present form or any other form."14 Thereafter, the government Peace Panel was dismantled by the President.

II. Petitions should be Decided on the Merits

The first threshold issue is whether this Court should exercise its power of judicial review and decide the petitions at bar on the merits.

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

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

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes known as the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following:

A. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional amendments.

x x x

c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENT REBEL GROUPS. This component involves the conduct of face-to-face negotiations to reach peaceful settlement with the different rebel groups. It also involves the effective implementation of peace agreements. (Emphasis supplied)cralawlibrary

Executive Order No. 3, was later amended by E.O. No. 555,17 and was followed by the Tripoli Peace Agreement of 2001. The Tripoli Peace Agreement of 2001 became the basis for several rounds of exploratory talks between the GRP Peace Panel and the MILF. These exploratory talks resulted in the signing of the Joint Statements of the GRP and MILF peace panels to affirm commitments that implement the Tripoli Agreement of 2001, including the ancestral domain aspect. The issuance of the Joint Statements culminated in the initialing of the MOA-AD.18

It is crystal clear that the initialing of the MOA-AD is but the evidence of the government peace negotiating panel's assent to the terms contained therein. If the MOA-AD is constitutionally infirm, it is because the conduct of the peace process itself is flawed. It is the constitutional duty of the Court is to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the government peace negotiating panel in the conduct of the peace negotiations with the MILF. The Court should not restrict its review on the validity of the MOA-AD which is but the end product of the flawed conduct of the peace negotiation with the MILF.

Requirements of Ripeness and
Mootness are not bars to review

In contending that this Court should refrain from resolving the merits of the petitions at bar, two principal defenses were deployed by the Solicitor General: the issues raised for resolution are not ripe for adjudication and regardless of their ripeness, are moot.

With due respect, the defenses cannot be sustained. To contend that an issue is not ripe for adjudication is to invoke prematurity;19 that the issue has not reached a state where judicial intervention is necessary, hence, there is in reality no actual controversy. On the other hand, to urge that an issue has become moot concedes that judicial intervention was once proper but subsequent developments make further judicial action unnecessary. Together, mootness and ripeness act as a two-pronged pincer, squeezing the resolution of controversies within a narrow timeframe.20

First, the issues at bar are ripe for resolution. In Ohio Forestry Ass'n Inc. v. Sierra Club,21 the following factors were identified as indicative of the ripeness of a controversy:

1. Whether delayed review would cause hardship to the plaintiffs;

2. Whether judicial intervention would inappropriately interfere with further administrative action;

3. Whether the Court would benefit from further factual development of the issues presented;

Underlying the use of the foregoing factors is first, the setting of a threshold for review and second, judicial application of the threshold to the facts extant in a controversy. I respectfully submit that where a controversy concerns fundamental constitutional questions, the threshold must be adjusted to allow judicial scrutiny, in order that the issues may be resolved at the earliest stage before anything irreversible is undertaken under cover of an unconstitutional act. Schwartz cites one vital consideration in determining ripeness, viz:

In dealing with ripeness, one must distinguish between statutes and other acts that are self-executing and those that are not. If a statute is self executing, it is ripe for challenge as soon as it is enacted. For such a statute to be subject to judicial review, it is not necessary that it be applied by an administrator, a prosecutor, or some other enforcement officer in a concrete case.22

Although Schwartz employs the term "statute," he qualifies that the principle enunciated applies to other governmental acts as well.23

Prescinding from these parameters, it is evident that the Court is confronted with a MOA-AD that is heavily laden with self-executing components. Far from the representation of the Solicitor General, the MOA-AD is not a mere collection of consensus points,24 still bereft of any legal consequence. The commitments made by the government panel under the MOA-AD can be divided into (1) those which are self-executory or are immediately effective by the terms of the MOA-AD alone, (2) those with a period or which are to be effective within a stipulated time, and (3) those that are conditional or whose effectivity depends on the outcome of a plebiscite.

Let us cast an eye on the self executory provisions of the MOA-AD which will demolish the argument of the respondents that the issues in the petitions at bar are not ripe for adjudication.

The MOA-AD provides that "the Parties affirm that the core of the BJE shall constitute the present geographic area of the ARMM, including the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte that voted for inclusion in the ARMM during the 2001 plebiscite."

The MOA-AD then proceeds to enumerate the powers that the BJE possesses within its area. The BJE is granted powers of governance which it can exercise without need of amendments to be made to the Constitution or existing law or without imposing any condition whatsoever.

The MOA-AD also gives the BJE the unconditional right to participate in international meetings and events, e.g., ASEAN meetings and other specialized agencies of the United Nations.25 It grants BJE the right to participate in Philippine official missions and delegations that are engaged in the negotiation of border agreements or protocols for environmental protection, equitable sharing of incomes and revenues, in addition to those of fishing rights.26 Again, these rights are given to the BJE without imposing prior conditions such as amendments to the Constitution, existing law or the enactment of new legislation.

Next, let us go to provisions of the MOA-AD with a period which will further demonstrate the lack of merit of respondents' posture that the petitions at bar are not ripe for adjudication. The MOA-AD provides that "without derogating from the requirements of prior agreements27, 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."28 Once more, it is evident that no conditions were imposed with respect to the conduct of a plebiscite within twelve months following the signing of the MOA-AD. The provision starkly states that within twelve months, the government will conduct and deliver a plebiscite covering areas under Category A of the MOA-AD.

We now come to respondents' argument on mootness. In determining whether a case has been rendered moot, courts look at the development of events to ascertain whether the petitioner making the constitutional challenge is confronted with a continuing harm or a substantial potential of harm. Mootness is sometimes viewed as "the doctrine of standing set in a time frame: The requisite personal interest must exist at the commencement of the litigation and must continue throughout its existence."29 Stated otherwise, an actual controversy must be extant at all stages of judicial review, not merely at the time the complaint is filed.30

Respondents insist that the petitions at bar are moot for three reasons: (1) the petitioners North Cotabato and Zamboanga have already been furnished copies of the MOA-AD; (2) the Executive Secretary has issued a Memorandum that the government will not sign the MOA-AD and, (3) the GRP Peace Panel has been dissolved by the President.

These grounds are barren grounds. For one, the press statements of the Presidential Adviser on the Peace Process, Gen. Hermogenes Esperon, Jr., are clear that the MOA-AD will still be used as a major reference in future negotiations.31 For another, the MILF considers the MOA-AD a "done deal," 32 hence, ready for implementation. On the other hand, the peace panel may have been temporarily dismantled but the structures set up by the Executive and their guidelines which gave rise to the present controversy remain intact. With all these realities, the petitions at bar fall within that exceptional class of cases which ought to be decided despite their mootness because the complained unconstitutional acts are "capable of repetition yet evading review."33

This well-accepted exception to the non-reviewability of moot cases was first enunciated in the case of Southern Pacific Terminal Co. v. ICC.34 The United States Supreme Court held that a case is not moot where interests of a public character are asserted under conditions that may be immediately repeated, merely because the particular order involved has expired.

In the petitions at bar, one need not butt heads with the Solicitor General to demonstrate the numerous constitutional infirmities of the MOA-AD. There is no need to iterate and reiterate them. Suffice to stress that it is because of these evident breaches, that the MOA-AD requires the present Constitution to undergo radical revisions. Yet, the unblushing threat is made that the MOA-AD which shattered to smithereens all respect to the Constitution will continue to be a reference point in future peace negotiations with the MILF. In fine, the MOA-AD is a constitutional nightmare that will come and torment us again in the near future. It must be slain now. It is not moot.

Let us adhere to the orthodox thought that once a controversy as to the application of a constitutional provision is raised before this Court, it becomes a legal issue which the Court is hide-bound to decide.35 Supervening events, whether contrived or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution has already been committed or the threat of being committed again is not a hypothetical fear.36 It is the function of judicial review to uphold the Constitution at all cost or we forfeit the faith of the people.

III. The Deviation from the MNLF
Model of Pursuing Peace with
Rebels is Inexplicable

The MNLF model in dealing with rebels which culminated in the Peace Agreement of 1996, was free from any infirmity because it respected the metes and bounds of the Constitution. While the MNLF model is ostensibly based on the Tripoli Agreement of 1976, its implementation was in perfect accord with Philippine laws. The implementation of the Tripoli Agreement of 1976 came in two phases: the first, under the legislative power of then President Marcos and the second, under the provisions of Article X of the 1987 Constitution and its implementing legislation, Republic Act No. 6734.37

Under President Marcos, autonomy in the affected provinces was recognized through Presidential Proclamation No.1628. It declared autonomy in 13 provinces and constituted a provisional government for the affected areas. The proclamation was followed by a plebiscite and the final framework for the autonomous region was embodied in Presidential Decree No.1618.

The establishment of the autonomous region under P.D. 1628 was constitutionalized by the commissioners in the 1987 Constitution as shown by the following exchange of views:

MR. ALONTO: Madam President, I have stated from the start of our consideration of this Article on Local Governments that the autonomous region exists now in this country. There is a de facto existence of an autonomous government in what we call now Regions IX and XII. Region IX is composed of the provinces of Tawi-Tawi, Sulu, Basilan, Zamboanga City, Zamboanga del Sur and Zamboanga del Norte, including all the component cities in the provinces. Region XII is composed of the Provinces of Lanao del Norte, Lanao del Sur, Maguindanao, Sultan Kudarat and North Cotabato. This autonomous region has its central governmental headquarters in Zamboanga City for Region IX and in Cotabato City for Region XII. In fact, it is stated by Commissioner Ople that it has an executive commission and a legislative assembly.

MR. DE CASTRO: Madam President.

MR. ALONTO: These two regions have been organized by virtue of P.D. No. 1618 of President Marcos, as amended by P.D. No. 1843.

MR. DE CASTRO: Madam President.

MR. ALONTO: If the Gentleman will bear with me, I will explain to him. That is why there is a de facto autonomous government existing in Mindanao

MR. DE CASTRO: Madam President.

THE PRESIDENT: May we please allow Commissioner Alonto to finish his remarks before any interruption?cralawred

MR. DE CASTRO: Yes Madam President.

MR. ALONTO: Madam President, this autonomous region is recognized by the present regime for the very reason that the present regime is now in the process of a negotiation with the Moro National Liberation Front. In a way, what we are doing is to give constitutional basis for the President of this country today to proceed with the negotiation with the Moro National Liberation Front.

THE PRESIDENT: Commissioner Uka is recognized.

MR. UKA: Madam President, not only that. President Corazon C. Aquino has appointed Mr. Albert Tugum as the Chairman of Region IX and Mr. Datu Zakaria Candau as chairman of Region XII. They are doing their work well right now. So there are two recognized autonomous regions. They have also a complete regional assembly as the legislative body. So, it is only a matter of putting this in the Constitution.

THE PRESIDENT: So, what is before the body is the proposed amendment on Line 11 of Section 1.

Commissioner de Castro is recognized.

MR. DE CASTRO: Madam President, if there is now an autonomous region in Mindanao and if, according to the Honorable Ople, this has the recognition of the central government, what then is the use of creating autonomous regions in Muslim Mindanao and going through the process of a plebiscite and enacting an organic act?cralawred

My amendment is simply to clarify the term "Muslim Mindanao." I really did not expect that this will go this far - - - that it is being placed in the Constitution, that it is a fait accompli and that all we have to do here is say "amen" to the whole thing and it we do not say "amen," they will still continue to be autonomous regions. I insist on my amendment, Madam President.

MR. OPLE: May I provide more information to Commissioner de Castro on this matter.

First of all, we have to correct the misimpression that the autonomous regions, such as they now exist in Mindanao, do not enjoy the recognition of the central government. Secondly, may I point out that the autonomy existing now in Regions IX and XII is a very imperfect kind of autonomy. We are not satisfied with the legal sufficiency of these regions as autonomous regions and that is the reason the initiative has been taken in order to guarantee by the Constitution the right to autonomy of the people embraced in these regions and not merely on the sufferance of any existing or future administration. It is a right, moreover, for which they have waged heroic struggles, not only in this generation but in previous eras and, therefore, what we seek is constitutional permanence for this right.

May I also point out, Madam President, that the Tripoli Agreement was negotiated under the aegis of foreign powers. No matter how friendly and sympathetic they are to our country, this is under the aegis of the 42-nation Islamic Conference. Should our brothers look across the seas to a conclave of foreign governments so that their rights may be recognized in the Constitution? Do they have to depend upon foreign sympathy so that their right can be recognized in final, constitutional and durable form.

THE PRESIDENT: Commissioner Ople, the consensus here is to grant autonomy to the Muslim areas of Mindanao?cralawred

MR. OPLE: Yes.(Emphasis supplied)38

Clearly, the mandate for the creation of the ARMM is derived principally from the 1987 Constitution. Thereafter, ARRM was given life by Republic Act No. 6734,39 the Organic Act of the ARMM. Our executive officials were guided by and did not stray away from these legal mandates at the negotiation and execution of the Peace Agreement with the MNLF in 1996. Without ifs and buts, its Whereas Clauses affirmed our sovereignty and territorial integrity and completely respected our Constitution.40

In stark contrast, the peace process with the MILF draws its mandate principally from Executive Order No. 3. This executive order provided the basis for the execution of the Tripoli Agreement of 2001 and thereafter, the MOA-AD. During the whole process, the government peace negotiators conducted themselves free from the strictures of the Constitution. They played fast and loose with the do's and dont's of the Constitution. They acted as if the grant of executive power to the President allows them as agents to make agreements with the MILF in violation of the Constitution. They acted as if these violations can anyway be cured by committing that the sovereign people will change the Constitution to conform with the MOA-AD. They forgot that the Constitution grants power but also sets some impotence on power.

IV. The Exercise of Executive Power is
Subject to the Constitution

Clearly, the respondents grossly misunderstood and patently misapplied the executive powers of the President.

The MILF problem is a problem of rebellion penalized under the Revised Penal Code.41 The MILF is but a rebel group. It has not acquired any belligerency status. The rebellion of the MILF is recognized expressly by E.O. No. 342 as well as by E.O. No. 555.43 The President's powers in dealing with rebellion are spelled out in Article VII, section 18 of the Constitution, viz:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

These are the well crafted commander-in-chief powers of the President. They enumerate with exactitude the powers which the President should use in dealing with rebellion. They are graduated in degrees. The strongest of these powers is the power to declare martial law and worthy to note, its exercise is subject to restraints. But more important, all these commander-in-chief powers can only be used to quell the rebellion. They cannot be utilized to dismember the State or to create a state within our State and hand it over to the MILF rebels.

In dealing with the MILF rebellion, the President may, however, opt not to use force but negotiate peace with the MILF. Undoubtedly, the President as Chief Executive can negotiate peace with rebels, like the MILF. Article VII, section 1 of the Constitution vests in the President the entire panoply of executive power, to reach peace with rebels. But undoubtedly too, the exercise of executive power to secure peace with rebels is limited by the Constitution.

All these are due to the preeminent principle that our government is fundamentally one of limited and enumerated powers. As well stated in Angara v. Electoral Commission,44 viz:

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

In fine, there is no power in the Constitution that can run riot. There is no power in the Constitution that is unbounded. There is no power in the Constitution that can be exercised if it will destroy the Constitution. For all powers in the Constitution are designed to preserve the Constitution.

In other words, the President as Chief Executive can negotiate peace with the MILF but it is peace that will insure that our laws are faithfully executed. The President can seek peace with the MILF but without crossing the parameters of powers marked in the Constitution to separate the other branches of government to preserve our democracy. For even in times of war, our system of checks and balances cannot be infringed.45 More so in times where the only danger that faces the State is the lesser danger of rebellion.

Needless to stress, the power of the President to negotiate peace with the MILF is not plenary. While a considerable degree of flexibility and breadth is accorded to the peace negotiating panel, the latitude has its limits - the Constitution. The Constitution was ordained by the sovereign people and its postulates may not be employed as bargaining chips without their prior consent.

V. The Constitution as Compact of the People

The question may be asked: In the process of negotiating peace with the MILF, why cannot the Executive commit to do acts which are prohibited by the Constitution and seek their ratification later by its amendment or revision?cralawred

Many philosophical perspectives have been advanced in reply to this question. Yet, no theory has been as influential, nor has been as authoritative, as the social contract theory,46 articulated by John Locke, viz:

For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority: for that which acts any community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority. And therefore we see, that in assemblies, empowered to act by positive laws, where no number is set by that positive law which empowers them, the act of the majority passes for the act of the whole, and of course determines, as having, by the law of nature and reason, the power of the whole.47

The French philosopher, Jean Jacques Rosseau stressed the non-derogability of this social contract, viz:

But the body politic or sovereign, deriving its existence only from the sanctity of the contract, can never bind itself, even to others, in anything that derogates from the original act, such as alienation of some portion of itself, or submission to another sovereign. To violate the act by which it exists would be to annihilate itself; and what is nothing produces nothing.48

Dean Vicente Sinco of the U.P. College of Law articulated these precepts in his seminal work, Philippine Political Law, viz:

As adopted in our system of jurisprudence a constitution is a written instrument which serves as the fundamental law of the state. In theory, it is the creation of the will of the people, who are deemed the source of all political powers. It provides for the organization of the essential departments of government, determines and limits their powers, and prescribes guarantees to the basic rights of the individual.49

xxxx

Some authorities have also considered the constitution as a compact, an "agreement of the people, in their individual capacities, reduced to writing, establishing and fixing certain principles for the government of themselves." This notion expresses the old theory of the social contract obligatory on all parties and revocable by no one individual or group less than the majority of the people; otherwise it will not have the attribute of law.50 (Emphasis supplied)cralawlibrary

In sum, there is no power nor is there any right to violate the Constitution on the part of any official of government. No one can claim he has a blank check to violate the Constitution in advance and the privilege to cure the violation later through amendment of its provisions. Respondents' thesis of violate now, validate later makes a burlesque of the Constitution.

I vote to grant the petitions.

Endnotes:


1 The formation of the commando unit was supposedly for a destabilization plan by the Marcos government aimed at Sabah. The young Muslim recruits were to be mobilized for operations against Sabah and subsequently claim it from Malaysia.

2 T.J.S. George, Revolt in Mindanao: The Rise of Islam in Philippine Politics (1980) and Cesar Majul, The Contemporary Muslim Movement in the Philippines (1985), cited in Thomas M. McKenna, Muslim Rulers and Rebels, Everyday Politics and Armed Separatism in Southern Philippines, p. 141 (1998).

3 Thomas M. McKenna, Muslim Rulers and Rebels, Everyday Politics and Armed Separatism in Southern Philippines, p. 144 (1998).

4 Ferdinand Marcos, "Proclamation of Martial Law", Philippine Sunday Express 1(141):5-8, cited in Thomas McKenna, supra., at 156.

5 Quoted in "Implementation of the Tripoli Agreement" jointly published by the Department of Foreign Affairs and the Ministry of Muslim Affairs, Manila, November 27, 1984, p. 36, cited in Abraham Iribani, Give Peace a Chance, The Story of the GRP-MNLF peace Talks, p. 15 (2006), at p. 36.

6 From MNLF files, Nur Misuari, Chairperson of the MNLF, Address delivered before the Plenary Session of the 19th ICFM, held in Cairo, Egypt, July 31 to August 5, 1990, "The Tragedy of the Peace Process and What the 19th ICFM Can Do to Help," cited in Abraham Iribani, Supra., note 5 at p. 39.

7 Abraham Iribani, supra note 5, at p. 43.

8 Marites Danguilan Vitug and Glenda M. Gloria, Under the Crescent Moon: Rebellion in Mindanao, p. 141 (2000).

9 Id. at 146.

10 Id. at 161.

11 Memorandum of the Respondent Government of the Republic of the Philippines Peace Panel on the Ancestral Domain, September 26, 2008, p. 10.

12 Republic Act No. 9054, An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, amending for the purpose Republic Act No. 6734, entitled 'an act providing for the autonomous region in Muslim Mindanao', as amended (2001).

13 GRP-MILF Joint Statement on the Memorandum of Agreement on Ancestral Domain, July 27, 2008.

14 Memorandum of the Solicitor General for the Respondents, September 26, 2008, p. 7.

15 February 28, 2001.

16 Executive Order No. 3, (2001), Sec. 4(a).

17 Amending Sections 5(c) and 11 of Executive Order No. 3, s-2001, Defining the Policy and Administrative Structure for Government's Comprehensive Peace Efforts, August 3, 2006.

18 Individually, these documents have been identified as terms of referents for the MOA.

19 Schwartz, Bernard. Constitutional Law at p. 25 (1972).

20 Bowen v. Roy, 476 U.S. 693, 722 (1976).

21 523 U.S. 726 (1998).

22 Supra, note 18 at 25.

23 Id. at 78.

24 Memorandum for the Respondents Government of the Republic of the Philippines Peace Panel on the Ancestral Domain, 26 September 2008, p. 16.

25 Id., Resources, No. 4(b), p. 8.

26 Memorandum of Agreement on Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001, Territory, No. 2(f), p. 4.

27 The Agreement for General Cessation of Hostilities dated July 18, 1997 Between the GRP and the MILF, and its Implementing Administrative and Operational Guidelines; The General Framework of Agreement of Intent Between the GRP and the MILF dated August 27, 1998; The Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF dated March 24, 2001; The Tripoli Agreement on Peace Between the GRP and the MILF dated June 22, 2001; The Tripoli Agreement Between the GRP and the Moro National Liberation Front (MNLF) dated December 23, 1976 and the Final Agreement on the Implementation of the 1976 Tripoli Agreement Between the GRP and the MNLF dated September 2, 1996; Republic Act No. 6734, as amended by R.A. 9054, otherwise known as "An Act to Strengthen and Expand the Autonomous Region in Muslim Mindanao (ARMM)"; ILO Convention No. 169, in correlation to the UN Declaration on the Rights of the Indigenous Peoples, and Republic Act No. 8371 otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter; the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), and internationally recognized human rights instruments.

28 Memorandum of Agreement on Ancestral Domain, Territory, 2(d), p. 3.

29 United States parole Commission v. Geraghty, 445 U.S. 388, 397 (1980) quoting Henry Monaghan, "Constitutional Adjudication: The Who and When," 82 Yale L.J. 1363, 1384 (1973).

30 Preiser v. Newkirk, 422 U.S. 395, 401-02 (1975).

31 Memorandum of Petitioners-Intervenors Franklin Drilon and Adel Tamano, September 18, 2008, p. 2.

32 Id. at 13.

33 David v. Macapagal-Arroyo, G.R. No. 171396, 489 SCRA 160, May 3, 2006.

34 219 U.S. 498 (1911).

35 Tanada v. Angara, 338 Phil. 546, 574 (1997).

36 Chavez v. Public Estates Authority, 433 Phil. 522 (2002).

37 An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao, August 1, 1989.

38 III CONSTITUTIONAL RECORD 495-496.

39 Republic Act 6734 was later amended by Republic Act 9504. The latter law took into account the terms of the Tripoli Agreement.

40 11th Whereas Clause.

41 Article 134, Revised Penal Code.

42 Sec. 4(c) provides for a "peaceful negotiated settlement" with the different rebel groups.

43 Creating a government peace panel to deal with the MILF.

44 G.R. No. 45081. July 15, 1936.

45 Ex Parte Milligan 71 U.S. 2 (1866).

46 Curtis, Michael M. The Great Political Theories at p. 360. This is with reference in particular to John Locke.

47 Locke, John. Second Treatise on Civil Government. Chapter VII, Sec. 96. Accessible at http://www.constitution.org/jl/2ndtr08.txt. Last accessed October 8, 2008.

48 Rosseau, Jean Jacques., The Social Contract Henry J. Tozer Translation, Ch. VI at pp. 20-21.

49 Sinco, Vicente G. Philippine Political Law, at p. 66 10th ed. (1954).

50 Id. at 66-67.

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