TOPIC: Administrative Regions and Autonomous Regions
PROVINCE OF NORTH COTABATO vs. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
G.R. Nos. 183591, 183752, 183893, 183951, & 183962
October 14, 2008
On 8 August 2008, the Government of the Republic of the Philippines (GRP), represented by the GRP Peace Panel and the Presidential Adviser on the Peace Process (PAPP), and the Moro Islamic Liberation Front (MILF) were scheduled to sign the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the previous GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MOA-AD included, among others, a stipulation that creates the Bangsamoro Juridical Entity (BJE), to which the GRP grants the authority and jurisdiction over the ancestral domain and ancestral lands of the Bangsamoro—defined as the present geographic area of the ARMM constituted by Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City, as well as the municipalities of Lanao del Norte which voted for inclusion in the ARMM in the 2001 plebiscite. The BJE is then granted the power to build, develop, and maintain its own institutions. The MOA-AD also described the relationship of the GRP and the BJE as “associative,” characterized by shared authority and responsibility. It further provides that its provisions requiring “amendments to the existing legal framework” shall take effect upon signing of a Comprehensive Compact.
Before the signing, however, the Province of North Cotabato sought to compel the respondents to disclose and furnish it with complete and official copies of the MOA-AD, as well as to hold a public consultation thereon, invoking its right to information on matters of public concern. A subsequent petition sought to have the City of Zamboanga excluded from the BJE. The Court then issued a Temporary Restraining Order (TRO) on 4 August 2008, directing the public respondents and their agents to cease and desist from formally signing the MOA-AD.
Overview of the MOA-AD:
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is “the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as ‘Bangsamoros.'” It defines “Bangsamoro people” as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood, including their spouses.30
Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not only “Moros” as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD proceeds to refer to the “Bangsamoro homeland,” the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.33
The MOA-AD goes on to describe the Bangsamoro people as “the ‘First Nation’ with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.”
The MOA-AD then mentions for the first time the “Bangsamoro Juridical Entity” (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.37
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.38
More specifically, the core of the BJE is defined as the present geographic area of the ARMM – thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each other.
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its “internalwaters,” defined as extending fifteen (15) kilometers from the coastline of the BJE area;42 that 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; and that within these territorial waters, the BJE and the “Central Government” shall exercise joint jurisdiction, authority and management over all natural resources.Notably, the jurisdiction over the internal waters is not similarly described as “joint.”There is no similar provision on the sharing of minerals and allowed activities with respect to the internal waters of the BJE.
The MOA-AD states that 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.46
The external defense of the BJE is to remain the duty and obligation of the Central Government. The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE.49
The BJE may modify or cancel the forest concessions, timber licenses, etc. granted by the Philippine Government, including those issued by the present ARMM.
The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the Comprehensive Compact. 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 structure of governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring “amendments to the existing legal framework” shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.
Main Issue: WON the MOA-AD is constitutional?
The MOA-AD is UNCONSTITUTIONAL since the powers granted to the Bangsamoro Juridical Entity (BJE) exceeds those granted to local governments and even go beyond those of the present ARMM. It cannot be reconciled with the Constitution and existing laws.
Is the “associative” relationship envisioned between the GRP and BJE unconstitutional?
YES, the “associative” relationship between the GRP and the BJE is UNCONSTITUTIONAL since the concept presupposes that the associated entity is a state and implies that same is on its way to independence and the concept of “association” is NOT RECOGNIZED UNDER THE CONSTITUTION
An ASSOCIATION is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence.
In international practice, the associated state arrangement has usually been used as a transitional device of former colonies on their way to full independence.
MOA-AD, it contains many provisions which are consistent with the international legal concept of association:
• BJEs capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJEs participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it.
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an associative relationship with the national government.
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.
Can the BJE be considered a state under international law?
YES, the BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention: permanent population, defined territory, government & capacity to enter into relations with other state.
The BJE is a far MORE POWERFUL ENTITY than the ARMM recognized under the Constitution. The spirit animating it RUNS COUNTER to national sovereignty and territorial integrity of the Republic.
Does the MOA-AD violate Article X, Section 18 of the 1987 Constitution on the creation of Autonomous Regions?
YES, the MOA-AD violated Article X, Section 18 of the 1987 Constitution on the creation of autonomous regions since the BJE is MORE OF A STATE than an autonomous region.
Even assuming that it can be covered by the term “autonomous region”, it would still be contrary to the Constitution.
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.
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.
Does the MOA-AD violate Section 20, Article X of the 1987 Constitution on the Powers of Autonomous Regions?
YES, the MOA-AD does not comply with Section 20, Article X of the 1987 Constitution. The MOA-AD would require an AMENDMENT that would EXPAND the powers granted to autonomous regions under the Constitution.
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.
The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: 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 since only the President has the sole authority to negotiate with other states.
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.
Is the MOA-AD consistent with statutory law (RA 9054 – Organic Act of ARMM and the Indigenous Peoples’ Rights Act)?
NO, besides being irreconcilable with the Constitution, the MOA-AD is also INCONSISTENT with prevailing statutory law, among which are R.A. 9054 or the Organic Act of ARMM and the IPRA.
This use of the term Bangsamoro 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.
Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-ADs manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure.
By paragraph 1 of TERRITORY, the 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