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G.R. No. 183591 - G.R. NOS. 183591, 183572, 183893, 183951 and 183962 - YNARES-SANTIAGO - 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 - YNARES-SANTIAGO - 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

YNARES-SANTIAGO, J.:

I join the majority opinion and concur in the views expressed in the ponencia. More particularly, I register my agreement in prohibiting respondents and their agents from signing and executing the Memorandum of Agreement on Ancestral Domain (MOA-AD), or any similar instruments. The said MOA-AD contains provisions which are repugnant to the Constitution and which will result in the virtual surrender of part of the Philippines' territorial sovereignty, which our people has spent decades fighting for and which scores of men in uniform have valiantly defended.

While the ponencia exhaustively discusses the grounds upon which the Court must invalidate and strike down the many questionable provisions of the MOA-AD, I wish to add some important points which, I hope, will serve to further highlight and underscore the serious constitutional flaws in the MOA-AD.

Only after certain quarters took notice and raised a clamor, and only after this Court has issued a temporary restraining order enjoining the signing of the MOA-AD, did respondents, through the Office of the Solicitor General and the Executive Secretary, openly declare that the MOA-AD or any similar instrument will not be signed by the GRP. On this basis, respondents assert that the petitions have become moot and academic. This, to my mind, was a mere afterthought. For were it not for the timely exposure of the MOA-AD in the public light, the signing thereof would have gone ahead as planned.

Furthermore, respondents' protestations that the petitions have become moot and academic in view of the disclosure and non-signing of the MOA-AD is unavailing, as it is well-recognized that mootness, as a ground for dismissal of a case, is subject to certain exceptions. In David v. Pres. Arroyo,1 we held that 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. To my mind, 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.2

The ultimate issue in these cases is whether the GRP panel went beyond its powers when it negotiated terms that contravene the Constitution. It is claimed that the panel stipulated on matters that were outside of its authority and under the exclusive prerogative of Congress. In other words, the constitutional as well as legal limits of executive authority in the drafting of a peace agreement have been squarely put in issue. This involves a genuine constitutional question that the Court has the right and duty to resolve.

Respondents insist that it is not necessary to discuss the constitutionality of each provision of the MOA-AD, because the latter is but a codification of consensus points which creates no rights and obligations between the parties. The MOA-AD allegedly has no legal effects, even if it is signed, because it is merely a preliminary agreement whose effectivity depends on subsequent legal processes such as the formulation of a Comprehensive Compact, the holding of a plebiscite, the amendment of laws by Congress as well as constitutional amendments. Consequently, it would be premature for the Court to pass upon the constitutional validity of the MOA-AD since it is neither self-executory nor is it the final peace agreement between the GRP and MILF.

A reading of the MOA-AD shows that its pertinent provisions on the basic concepts, territory, resources and governance of the Bangsamoro Juridical Entity (BJE) have been made to depend for its effectivity on "changes to the legal framework." Paragraph 7 on the provisions on Governance states:

7. 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.

The provisions of the MOA-AD which require "amendments to the existing legal framework" include practically all the substantive terms of the document. It is not difficult to foresee that the material provisions of the MOA-AD will require either an amendment to the Constitution or to existing laws to become legally effective. Some of the required constitutional or statutory amendments are the following:

a) Article I, Section 13 of the Constitution has to be amended to segregate the BJE territory from the rest of the Republic of the Philippines, as the MOA-AD delineates the Bangsamoro homeland under its paragraph 14 on Territory;

b) Section 1, Article X5 of the Constitution will have to include the BJE as among the five kinds of political subdivisions recognized under the fundamental law. The provision of an Autonomous Region for Muslim Mindanao (ARMM) will also have to be removed as the same is incorporated in the BJE per paragraph 2.c6 of the MOA-AD provisions on Territory;

c) The provision in Section 15, Article X7 of the Constitution which declares the creation of the ARMM "within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines" must also be changed since there is no provision in the MOA-AD that subjects the BJE to the authority, territory and sovereignty of the Republic of the Philippines;

d) Section 16, Article X8 of the Constitution which gives the President power to supervise autonomous regions will have to be amended since the MOA-AD does not provide for such supervision over the BJE;

e) Section 18, Article X9 of the Constitution which requires personal, family and property laws of autonomous regions to comply with the Constitution and laws will have to be changed as the MOA-AD grants the BJE the power to make its own laws;

f) An overhaul of the various constitutional provisions relating to the Executive, Judicial and Legislative Departments as well as the independent constitutional commissions must be undertaken to accommodate paragraph 810 of the MOA-AD provision on Governance which grants the BJE the power to create its own civil institutions;

g) Section 3, Article II of the Constitution which declares the Armed Forces of the Philippines as protector of the people and the State will have to be changed because the MOA-AD provides that the BJE shall have its own internal security force11 and the AFP will only defend the Bangsamoro homeland against external aggression;12

h) Section 2, Article XII13 of the Constitution must be changed to allow the BJE to manage, explore, develop, and utilize the natural resources within the Bangsamoro territory, pursuant to paragraphs 2.f 14, g (1)15 and h16 on Territory and paragraphs 117 and 218 on Resources of the MOA-AD;

i) Section 21, Article VII19 of the Constitution has to be amended to exempt the BJE from the ratification requirements of treaties and international agreements since it is given the power to enter into its own economic and trade agreements with other countries;

j) The Bangsamoro homeland will have to be exempted from the power of the President to exercise general supervision of all local governments under Section 4, Article X20 of the Constitution because the MOA-AD does not provide for any such stipulation;

k) Since the BJE will have its own laws, it is not subject to limitations imposed by Congress on its taxing powers under Section 5, Article X21 of the Constitution;

l) R.A. No. 6734 and R.A. No. 9054, or the ARMM Organic Acts, have to be amended to allow for the existing ARMM to be included within the Bangsamoro homeland to be governed by the BJE;

m) The Bangsamoro people will have to be exempted from the application of R.A. No. 8371 or the Indigenous Peoples Rights Act (IPRA) insofar as the MOA-AD declares the Bangsamoro territory as ancestral domain and recognizes in the Bangsamoro people rights pertaining to indigenous peoples under the IPRA;

n) Existing laws which regulate mining rights and the exploitation of natural resources will also have to exempt the BJE from its coverage, as the MOA-AD grants the BJE the power to utilize, develop and exploit natural resources within its territory as well as the authority to revoke or grant forest concessions, timber licenses and mining agreements; andcralawlibrary

o) The BJE will also have to be exempted from existing agrarian statutes as the BJE is empowered to enact its own agrarian laws and program under paragraph 2.e22 on Resources.

From the foregoing, it is clear that 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.

Paragraph 7 of the MOA-AD on Governance states that provisions therein which require amendments to the existing legal framework shall come into force upon signing of the Comprehensive Compact and upon effecting the necessary changes to the legal framework. These "necessary changes" shall be undertaken "with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact."

The language of the aforesaid paragraph 7 on Governance, in relation to paragraph 2 (d) on Territory, indicates that the GRP panel committed itself to cause the necessary changes to the legal framework within a stipulated timeframe for the MOA-AD to become effective. Paragraph 2(d) on Territory reads:

2. Toward this end, the Parties enter into the following stipulations:

x x x

d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the Annex). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.

Pursuant to the above, the GRP panel bound itself to "complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD." On the other hand, it is explicitly provided in paragraph 7 on Governance that the Comprehensive Compact shall contain a stipulated timeframe within which to effect the necessary changes to the legal framework. In other words, the GRP panel undertook to change the legal framework within a contemplated period to be agreed upon within fifteen (15) months from the signing of the MOA-AD.

It should also be noted that, in accordance with paragraph 2 (a)23 on Territory, the GRP panel committed itself "to the full and mutual implementation of this framework agreement on territory." To fully realize the MOA-AD stipulations on territory, it would be necessary to effect both statutory and constitutional amendments as well as complete negotiations on the Comprehensive Compact. The plebiscite envisioned under paragraph 2 (c) on Territory, for instance, would require not only an amendment of the ARMM Organic Acts, but also a constitutional amendment that would allow for the very creation of the BJE. Thus, the full implementation of the territory provisions of the MOA-AD presupposes changes in the legal framework, which the GRP panel guaranteed under paragraph 7 on Governance.

Additionally, paragraph 7 on Governance provides that necessary changes to the legal framework shall likewise be effected "with due regard to non-derogation of prior agreements." This can only mean that any change to the legal framework should not diminish or detract from agreements previously entered into by the parties. It also implies that provisions of prior agreements are already final and binding, as these serve as take-off points for the necessary changes that will be effected to fully implement the MOA-AD.

In my opinion, the MOA-AD is intended to be included among the prior agreements whose terms cannot be decreased by any of the changes that are necessary for it to come into force. More specifically, by the time the Comprehensive Compact shall have prescribed the timeframe for effecting these changes, the MOA-AD shall have become a prior agreement that is subject to the non-derogation clause found in paragraph 7 on Governance. This signifies that any change in the legal framework should adapt to the terms of the MOA-AD. The latter becomes the parameter of any statutory or constitutional amendments which are necessary to make the MOA-AD effective.

As such, it cannot be denied that 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. Thus, the Comprehensive Compact will simply lay down the particulars of the parties' final commitments, as expressed in the assailed agreement.

Consequently, paragraph 7 on Governance in relation to paragraph 2 (a) on Territory contradict respondents' assertion that the MOA-AD is merely a preparatory agreement devoid of any real effects. The language employed in these provisions do not support respondents' contention that the MOA-AD is just a reference for future negotiations or consists of mere proposals that are subject to renegotiation. The words used in these provisions are categorical in stating that the GRP panel committed itself to the full implementation of the MOA-AD by effecting changes to the legal framework within a stipulated timeframe. In other words, these are definite propositions that would have to be undertaken under the agreement of the parties.

The foregoing discussion demonstrates that the MOA-AD is not merely a draft of consensus points that is subject to further negotiations between the GRP panel and the MILF. The language of the MOA-AD shows that the GRP panel made a real and actual commitment to fully implement the MOA-AD by effecting the necessary amendments to existing laws and the Constitution. The GRP panel's obligation to fully implement the provisions on Territory and to effect these "necessary changes" is in itself not dependent on any statutory or constitutional amendment. It is only subject to a timeframe that will be specified in the Comprehensive Compact, per stipulation of the parties.

At this point, it is worth noting that the MOA-AD cannot even be subjected to subsequent legal processes, such as a plebiscite or statutory and constitutional amendments. The MOA-AD cannot be validated by any of these means considering that the GRP panel does not even have the power to make these legal processes occur. This is because the panel is not authorized to commit to statutory and constitutional changes to fully implement the MOA-AD. Thus, it is not legally possible to undertake these legal processes under the circumstances provided in the agreement.

To emphasize, the GRP panel had neither power nor authority to commit the government to statutory and constitutional changes. The power to amend laws and to cause amendments or revisions to the Constitution belongs to Congress and, to a certain extent, the people under a system of initiative and referendum. Only Congress and the people have the competence to effect statutory and constitutional changes in the appropriate manner provided by law. The GRP panel, as a mere organ of the Executive branch, does not possess any such prerogative.

In the matter of legislation, it is settled that the power of Congress under Article VI, Section 124 of the Constitution is plenary and all-encompassing. The legislature alone determines when to propose or amend laws, what laws to propose or amend, and the proper circumstances under which laws are proposed or amended. As held in Ople v. Torres:25

... Legislative power is "the authority, under the Constitution, to make laws, and to alter and repeal them." The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government.

Similarly, the power to amend or revise the Constitution also pertains to Congress in the exercise of its constituent functions. The same power is also reserved to the people under a system of initiative, pursuant to Article XVII26 of the Constitution. In Lambino v. COMELEC,27 the Court stated that there are three modes of amending the Constitution under Article XVII. The first mode is through Congress, acting as a constituent assembly, upon three-fourth's vote of all its Members; the second mode is through a constitutional convention created under a law passed by Congress; and the third mode is through a people's initiative. Nowhere in the Constitution does it state that the Executive or any of its organs can effect constitutional changes, as assumed by the GRP panel under the MOA-AD.

Notwithstanding the apparent lack of power or authority, the GRP panel undertook to effect changes to the Constitution and to statutes in order to fully implement the MOA-AD. In doing so, the GRP panel pre-empted Congress by determining, firsthand, the wisdom of effecting these changes as well as the nature of the required amendments to laws and the Constitution. It encroached upon the exclusive prerogative of Congress by assuming to exercise a discretion that it did not possess. It thus exceeded its authority and acted without jurisdiction.

It should have been evident to the GRP panel that it could not bargain away laws enacted by Congress or the people's sovereign will as expressed in the Constitution. Apart from the fact that it had no power to do so, its acts were in clear disregard of the instructions of the President as stated in the Memorandum of Instructions From the President dated March 1, 2001. The President clearly directed therein that "(t)he negotiations shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the principles of sovereignty and territorial integrity of the Republic of the Philippines." The GRP panel did otherwise and failed to act in accordance with this directive.

The GRP panel derives its authority from the Chief Executive, whose sworn duty is to faithfully execute the laws and uphold the Constitution. In negotiating the terms of the MOA-AD, however, the GRP panel violated our Constitution and our laws by subscribing to stipulations that could very well lead to their emasculation. The GRP panel agreed to illegal and unconstitutional concessions and guaranteed the performance of a prestation that it could not deliver. This constitutes manifest grave abuse of discretion amounting to lack or excess of jurisdiction.

It is beyond question that the MOA-AD is patently unconstitutional. 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.

For these reasons, I vote to grant the petitions. Respondents must be prohibited and permanently enjoined from negotiating, executing and entering into a peace agreement with terms similar to the MOA-AD. Although respondents have manifested that the MOA-AD will not be signed "in its present form or in any other form," the agreement must nonetheless be declared unconstitutional and, therefore, void ab initio, to remove any doubts regarding its binding effect on the Republic. Under no circumstance could the MOA-AD acquire legitimacy and force against the entire nation, and no less than a categorical declaration to this effect should put the issue to rest.

I so vote.

Endnotes:


1 G.R. No. 171396, May 3, 2006, 489 SCRA 160, 214-215.

2 Alunan v. Mirasol, 342 Phil. 467, 476-477 (1997).

3 Article I, Section 1. The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas, the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

4 1. The Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. However, delimitations are contained in the agreed Schedules (Categories).

5 Article X, Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordillera as hereinafter provided.

6 The provision states:

c. 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.

7 Section 15. There shall be created Autonomous Regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities and geographic areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

8 Article X, Section 16. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed.

9 Article X, Section 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of executive department and legislative assembly. Both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the Constitution and national laws. x x x

10 Paragraph 8, Governance. The parties agree that the BJE shall be empowered to build, develop and maintain its own institutions, inclusive of civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society, the details of which shall be discussed in the negotiation of the Comprehensive Compact.

11 Id.

12 Paragraph 4, Resources. The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines; provided, further that it shall remain the duty and obligation of the Central Government to take charge of external defense. Without prejudice to the right of the Bangsamoro juridical entity to enter into agreement and environmental cooperation with any friendly country affecting its jurisdiction.

13 Article XII, Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. x x x

14 Paragraph 2.f., Territory. Internal Waters:

The BJE shall have jurisdiction over the management, conservation, development, protection, utilization and disposition of all natural resources, living and non-living, within its internal waters extending fifteen (15) kilometers from the coastline of the BJE area.

15 Paragraph 2.g(1), Territory. Territorial Waters:

(1) The territorial waters of the BJE shall stretch beyond the BJE internal waters up to the Republic of the Philippines (RP) baselines southeast and southwest of Mainland Mindanao. Beyond the fifteen (15) kilometers internal waters, the Central Government and the BJE shall exercise joint jurisdiction, authority and management over areas and all natural resources x x x.

16 Paragraph 2.h., Territory. Sharing of Minerals on Territorial Waters:

Consistent with paragraphs 5 and 6 of the provisions on Resources, all potential sources of energy, petroleum in situ, hydrocarbon, natural gas and other minerals, including deposits or fields found within territorial waters, shall be shared between the Central Government and the BJE in favor of the latter through production sharing agreement or economic cooperation agreement.

17 Paragraph 1, Resources. The BJE is empowered with authority and responsibility for the land use, development, conservation and disposition of the natural resources within the homeland. Upon entrenchment of the BJE, the land tenure and use of such resources and wealth must reinforce their economic self-sufficiency. x x x

18 Paragraph 2, Resources. The Bangsamoro People through their appropriate juridical entity shall, among others, exercise power or authority over the natural resources within its territorial jurisdiction:

1. To explore, exploit, use or utilize and develop their ancestral domain and ancestral lands within their territorial jurisdiction, inclusive of their right of occupation, possession, conservation, and exploitation of all natural resources found therein;

2. x x x

3. To utilize, develop, and exploit its natural resources found in their ancestral domain or enter into joint development, utilization, and exploitation of natural resources, specifically on strategic minerals, designed as commons or shared resources, which is tied up to the final setting of appropriate institutions;

To revoke of grant forest concessions, timber license, contracts or agreements in the utilization and exploitation of natural resources designated as commons or shared resources, mechanisms for economic cooperation with respect to strategic minerals, falling within the territorial jurisdiction of the BJE; x x x

19 Article VII, Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all Members of the Senate.

20 Article X, Section 4. The President of the Philippines shall exercise general supervision over local governments. x x x

21 Article X, Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government.

22 Paragraph 2.e, Resources states that the BJE shall have the power:

e. To enact agrarian laws and programs suitable to the special circumstances of the Bangsamoro people prevailing in their ancestral lands within the established territorial boundaries of the Bangsamoro homeland and ancestral territory within the competence of the BJE; x x x

23 Paragraph 2.a, Territory states:

A. The GRP and MILF as the Parties to this Agreement commit themselves to the full and mutual implementation of this framework agreement on territory with the aim of resolving outstanding issues that emanate from the consensus points on Ancestral Domain.

24 Article VI, Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

25 354 Phil. 948, 966 (1998).

26 Article XVII - Amendments or Revisions

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members, or

(2) A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x.

27 G.R. No. 174153, October 25, 2006, 505 SCRA 160, 247.

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