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Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 183591 - (PROVINCE OF NORTH COTABATO, et al., v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN, et al.); G.R. No. 183752 (THE GOVERNMENT OF ZAMBOANGA, ET AL. v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), ET AL.); G.R. No. 183893 (CITY OF ILIGAN v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ACENSTRAL DOMAIN, ET AL.); G.R. No. 183951 (THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, ET AL. v. GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, ET AL.; FRANKLIN M. DRILON and ADEL ABBAS TAMANO, Intervenors; MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor Noel N. Deano, Intervenors; SENATOR MANUEL ROXAS, Intervenor, THE CITY OF ISABELA, BASILAN PROVINCE, Intervenor.

Promulgated:

October 14, 2008

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SEPARATE OPINION

TINGA, J.:

As a matter of law, the petitions were mooted by the unequivocal decision of the Government of the Philippines, through the President, not to sign the challenged Memorandum of Agreement on Ancestral Domain (MOA-AD). The correct course of action for the Court is to dismiss the petitions. The essential relief sought by the petitioners-a writ of prohibition under Rule 65-has already materialized with the Philippine government's voluntary yet unequivocal desistance from signing the MOA-AD, thereby depriving the Court of a live case or controversy to exercise jurisdiction upon.

At the same time, I deem it impolitic to simply vote for the dismissal the cases at bar without further discourse in view of their uniqueness in two aspects. At the center is an agreement and yet a party to it was not impleaded before it was forsaken. And while the unimpleaded party is neither a state nor an international legal person, the cases are laden with international law underpinnings or analogies which it may capitalize on to stir adverse epiphenomenal consequences.

According to news reports, the Moro Islamic Liberation Front (MILF) has adopted the posture that as far as it is concerned, the MOA-AD is already effective, and there may be indeed a tenuous linkage between that stance and the apparent fact that the MOA-AD, though unsigned, bears the initials of members of the Philippine negotiating panel, the MILF negotiating panel and the peace negotiator of the Malaysian government. These concerns warrant an extended discussion on the MOA-AD, even if the present petitions are moot and academic.

I.

It is a bulwark principle in constitutional law that an essential requisite for a valid judicial inquiry is the existence of an actual case or controversy. A justiciable controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree that is conclusive in character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.¹ The exercise of the power of judicial review depends upon the existence of a case or controversy. Consequently, if a case ceases to be a lively controversy, there is no justification for the exercise of the power, otherwise, the court would be rendering an advisory opinion should it do so.²

We held in Gancho-on v. Secretary of Labor:³

It is a rule of universal application, almost, that courts of justice constituted to pass upon substantial rights will not consider questions in which no actual interests are involved; they decline jurisdiction of moot cases. And where the issue has become moot and academic, there is no justiciable controversy, so that a declaration thereon would be of no practical use or value. There is no actual substantial relief to which petitioners would be entitled and which would be negated by the dismissal of the petition.

In the recent ruling in Suplico v. NEDA,⁴ the President officially desisted from pursuing a national government project which was challenged before this Court. The Court was impelled to take mandatory judicial notice⁵ of the President's act, and consequently declare the pending petitions as moot and academic. The Court, through Justice Reyes, held:

Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the judiciary's role of strengthening political stability indispensable to progress and national development. Pontificating on issues which no longer legitimately constitute an actual case or controversy will do more harm than good to the nation as a whole. Wise exercise of judicial discretion militates against resolving the academic issues, as petitioners want this Court to do. This is especially true where, as will be further discussed, the legal issues raised cannot be resolved without previously establishing the factual basis or antecedents.

Judicial power presupposes actual controversies, the very antithesis of mootness. In the absence of actual justiciable controversies or disputes, the Court generally opts to refrain from deciding moot issues. Where there is no more live subject of controversy, the Court ceases to have a reason to render any ruling or make any pronouncement.

Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado.[6]

The live controversy relied upon by the petitions was the looming accession by the Philippine government to the MOA-AD, through a formal signing ceremony that was to be held at Kuala Lumpur, Malaysia, on 5 August 2008. This ceremony was prevented when the Court issued a Temporary Restraining Order on 4 August 2008, yet even after the TRO, it appeared that the Government then was still inclined to sign the MOA-AD after the legal obstacles had been cleared. However, on 1 September 2008, the Government through the Office of the Solicitor General, filed a Compliance, manifesting the pronouncement of Executive Secretary Ermita that "[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA." This declared intent was repeated in a Manifestation dated 4 September 2008, and verbally reiterated during the oral arguments before this Court.

In addition, the President herself publicly declared, as recently as on 2 October 2008, that regardless of the ruling of the Supreme Court on these petitions, her government will not sign the MOA-AD, "in the light of the recent violent incidents committed by MILF lawless groups."⁷ Clearly following Suplico the Court has no choice but to take mandatory judicial notice of the fact that the Government will not sign or accede to the MOA-AD and on this basis dismiss to the petitions herein.

Thus, the Court is left with petitions that seek to enjoin the Government from performing an act which the latter had already avowed not to do. There is no longer a live case or controversy over which this Court has jurisdiction. Whatever live case there may have been at the time the petitions were filed have since become extinct.

Admittedly, there are exceptions to the moot and academic principle. The fact that these exceptions are oft-discussed and applied in our body of jurisprudence reflects an unbalanced impression, for most petitions which are rendered moot and academic are usually dismissed by way of unsigned or minute resolutions which are not published in the Philippine Reports or the Supreme Court Reports Annotated. Still, the moot and academic principle remains a highly useful and often applied tool for the Court to weed out cases barren of any current dispute. Indeed, even with those exceptions in place, there is no mandatory rule that would compel this Court to exercise jurisdiction over cases which have become academic. For the exceptions to apply, it would be necessary, at bare minimum, to exhibit some practical utilitarian value in granting the writs of prohibition sought. Otherwise, the words of the Court would be an empty exercise of rhetoric that may please some ears, but would not have any meaningful legal value.

A usual exception to the moot and academic principle is where the case is capable of repetition yet evading review. A recent example where the Court applied that exception was in Sanlakas v. Executive Secretary,⁸ which involved the power of the President to declare a state of rebellion. Therein, the Court decided to exercise jurisdiction "[t]o prevent similar questions from re-emerging."⁹ It was clear in Sanlakas that the challenged act, the declaration by the President of a state of rebellion was a unilateral act that was clearly capable of repetition, it having actually been accomplished twice before.

Contrast that situation to this case, where the challenged act is not a unilateral act that can be reproduced with ease by one person or interest group alone. To repeat the challenged act herein, there would have to be a prolonged and delicate negotiation process between the Government and the MILF, both sides being influenced by a myriad of unknown and inconstant factors such as the current headlines of the day. Considering the diplomatic niceties involved in the adoption of the MOA-AD, it is well-worth considering the following discussion on the complexity in arriving at such an agreement:

The making of an international agreement is not a simple single act. It is rather a complex process, requiring performance of a variety of different functions or tasks by the officials of a participating state.

Among the functions which must be distinguished for even minimal clarity are the following: (1) the formulation of rational policies to guide the conduct of negotiations with other states; (2) the conduct of negotiations with the representatives of other states; (3) the approval of an agreement for internal application within the state, when such internal application is contemplated; (4) the approval of an agreement for the external commitment of the state; (5) the final utterance of the agreement as the external commitment of the state to other states. ¹⁰

Assuming that the act can be repeated at all, it cannot be repeated with any ease, there being too many cooks stirring the broth. And further assuming that the two sides aree able to negotiate a new MOA-AD, it is highly improbable that it would contain exactly the same provisions or legal framework as the discarded MOA-AD.

II.

Even though the dismissal of these moot and academic petitions is in order in my view, there are nonetheless special considerations that warrant further comment on the MOA-AD on my part.

As intimated earlier, the MILF has adopted the public position that as far as it is concerned, the MOA-AD has already been signed and is binding on the Government. To quote from one news report:

"The MILF leadership, which is the Central Committee of the MILF, has an official position. that the memorandum of agreement on the Bangsamoro Ancestral Domain has been signed," said Ghadzali Jaafar, MILF vice chairman for political affairs.

xxx

Jaafar said the MILF considers the MOA binding because its draft agreement was "initialed" last July 27 in Kuala Lumpur by Rodolfo Garcia, government chief negotiator; Mohagher Iqbal, MILF chief negotiator; Hermogenes Esperon, presidential adviser on the peace process, and Datuk Othman bin Abdulrazak, chief peace facilitator for the Malaysian government.

"Our position is that after initialing, both parties initialed the MOA, that is a signing," Jaafar said.

Jaafar said the scheduled signing yesterday in Kuala Lumpur was merely "ceremonial and a formality, in a way to announce to all throughout the world that a memorandum of agreement has been signed but actually the signing, actual signing was done."

"So it's a done deal as far as the MILF is concerned," he said.

Jaafar said the MILF and the government set a ceremonial signing of the MOA "because this is a very important document."

"We want to be proud of it we want to announce it throughout the world that there is a memorandum of agreement between the Moro Islamic Liberation Front and the government of the Republic of the Philippines."

He said the MILF expects the government to abide by the MOA "because this agreement is binding on both parties."¹¹

It appears that the persons who initialed the MOA-AD were Philippine Presidential Peace Adviser Hermogenes Esperon, Jr., Philippine government peace negotiator Rodolfo Garcia, MILF chief negotiator Mohagher Iqbal, and Datuk Othman bin Abdulrazak, chief peace facilitator of the Malaysian government.¹²

The MILF is not a party to these petitions, and thus its position that the MOA-AD was in fact already signed through the initials affixed by representatives of the Philippine and Malaysian governments and the MILF has not been formally presented for the Court for adjudication. In an earlier submission to the Court, I discussed the position of the MILF from the following perspective:

There is the danger that if the petitions were dismissed for mootness without additional comment, it will be advocated by persons so interested as to make the argument that the intrinsic validity of the MOA-AD provisions has been tacitly affirmed by the Court. Moreover, the unqualified dismissal of the petitions for mootness will not preclude the MILF from presenting the claim that the MOA-AD has indeed already been signed and is therefore binding on the Philippine government. These concerns would especially be critical if either argument is later presented before an international tribunal, that would look to the present ruling of this Court as the main authority on the status of the MOA-AD under Philippine internal law.

The use of municipal law rules for international judicial and arbitral procedure has been more common and more specific than any other type of application.¹³ The International Court of Justice has accepted res judicata as applicable to international litigation.¹⁴ The following observations by leading commentators on international law should give pause for thought:

It is clear that, in general, judicial decisions (of national tribunals) in cases involving international law, domestic as well as international, can and will be cited for their persuasiveness by parties to an international legal dispute, the decisions of courts and other tribunals often being seen to affirm or announce a treaty-based rule or interpretation, a tenet of customary international law, or a general principle of law, international or domestic. Judicial decisions are seen as trustworthy evidence of what the law really is on a given subject; and this point is verified by most of the leading international adjudicative and arbitral decisions that have helped to lay the foundations of, and otherwise articulate, the substance of international law.¹⁵ (Words in parenthesis and emphasis supplied)

Thus, in my earlier submission, I stated that should this matter ever be referred to an international tribunal for adjudication, it is highly probable that a ruling based on mootness alone without more would be taken as an indicative endorsement of the validity of the MOA under Philippine law. That misimpression should be rectified for purposes that transcend the ordinary adjudicative exercise, I stressed.

Firstly, is the MILF correct when it asserted that the MOA-AD may already be considered as binding on the Philippine government?

Reference to the initialed but unsigned copy of the MOA-AD is useful.¹⁶ There are three distinct initials that appear at the bottom of each and every page of the 11-page MOA-AD: that of Garcia and Esperon for the Philippine negotiating panel, and that of Iqbal for the MILF. Page 11, the signature page, appears as follows:

IN WITNESS WHEREOF, the undersigned being the representatives of the Parties hereby affix their signatures.

Done this 5^th day of August, 2008 in Kuala Lumpur, Malaysia.

Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines

IN THE PRESENCE OF:

FOR THE GRP:	FOR THE MILF
(unsigned) RODOLFO C. GARCIA Chairman GRP Peace Negotiating Panel	(unsigned) MOHAGHER IQBAL Chairman MILF Peace Negotiating Panel
WITNESSED BY:
(unsigned) DATUK OTHMAN BIN ABD RAZAK Special Adviser to the Prime Minister
ENDORSED BY:
(unsigned) AMBASSADOR SAYED ELMASRY

(unsigned) DR. ALBERTO G. ROMULO Secretary of Foreign Affairs Republic of the Philippines	(unsigned) DATO' SERI UTAMA DR. RAIS BIN YATIM Minister of Foreign Affairs Malaysia
Initialed by
Sec. Rodolfo Garcia (initialed)	Mohagher Iqbal (initialed)
Sec. Hermogenes Esperon (initialed)
Witnessed by:
Datuk Othman bin Abd Razak (initialed)
Dated 27 July 2008

Two points are evident from the above-quoted portion of the MOA-AD. First, the affixation of signatures to the MOA-AD was a distinct procedure from the affixation of initials to the pages of the document. Initialization was accomplished on 27 July 2008, while signature was to have been performed on 5 August 2008. The initialing was witnessed by only one person, Razak, while the signing of the MOA-AD was to have been witnessed by the respective heads of the Foreign Affairs departments of the Philippines and Malaysia. Clearly, signing and initialing was not intended to be one and the same.

Second, it is unequivocal from the document that the MOA-AD was to take effect upon the affixation of signatures on 5 August 2008 in Kuala Lumpur, Malaysia, and not through the preliminary initialing of the document on 27 July 2008.

Under our domestic law, consent of the parties is an indispensable element to any valid contract or agreement.¹⁷ The three stages of a contract include its negotiation or preparation, its birth or perfection, and its fulfillment or consummation. The perfection of the contract takes place only upon the concurrence of its three essential requisites - consent of the contracting parties, object certain which is the subject matter of the contract, and cause of the obligation which is established.¹⁸ Until a contract is perfected, there can be no binding commitments arising from it, and at any time prior to the perfection of the contract, either negotiating party may stop the negotiation.¹⁹

Consent is indubitably manifested through the signature of the parties. That the Philippine government has not yet consented to be bound by the MOA-AD is indubitable. The parties had agreed to a formal signature ceremony in the presence of the Secretary of Foreign Affairs, the alter ego of the President of the Philippines. The ceremony never took place. The MOA-AD itself expresses that consent was to manifested by the affixation of signatures, not the affixation of initials. In addition, the subsequent announcement by the President that the Philippine Government will not sign the MOA-AD further establishes the absence of consent on the part of the Philippines to the MOA-AD. Under domestic law, the MOA-AD cannot receive recognition as a legally binding agreement due to the absence of the indispensable requisite of consent to be bound.

Nonetheless, it is unlikely that the MILF or any other interested party will seek enforcement of the MOA with the Philippine courts. A more probable recourse on their part is to seek enforcement of the MOA before an international tribunal. Could the Philippines be considered as being bound by the MOA under international law?

Preliminarily, it bears attention that Justice Morales has exhaustively and correctly debunked the proposition that the MOA-AD can be deemed a binding agreement under international law, or that it evinces a unilateral declaration of the Philippine government to the international community that it will grant to the Bangsamoro people all the concessions stated in the MOA-AD. It would thus be improper to analyze whether the MOA-AD had created binding obligations through the lens of international law or through an instrument as the Vienna Convention on the Law of Treaties, as it should be domestic law alone that governs the interpretation of the MOA-AD.

Nonetheless, even assuming that international law principles can be utilized to examine that question, it is clear that the MILF's claim that the MOA-AD is already binding on the Philippine government will not prevail.

The successful outcome of negotiation of international agreements is the adoption and authentication of the agreed text.²⁰ Once a written text is agreed upon and adopted, it is either signed, or initialed and subsequently signed by the diplomats and then submitted to the respective national authorities for ratification.²¹ Once a treaty has been adopted, the manner in which a state consents to be bound to it is usually indicated in the treaty itself.²² Signature only expresses consent to be bound when it constitutes the final stage of a treaty-making process.²³

Reisman, Arsanjani, Wiessner & Westerman explain the procedure in the formation of international agreements, including the distinction between initialing and signing:

Treaties are negotiated by agents of states involved. Usually, once the agents agree on a text, the authenticity of this agreed-upon mutual commitment is confirmed by the agents placing their initials on the draft agreement ("initialing"). Their principals, usually the heads of state or their representatives, then sign the treaty within a time period specified in the treaty, and submit it to internal processes, usually legislative authorities, for approval. Once this approval is secured, the heads of state express the consent of their state to be bound by depositing an instrument of ratification with the depositary power (in the case of a multilateral treaty) or with the other state party (in the case of a bilateral treaty). In the case of a multilateral treaty not signed in time, a state can still validly declare its consent to be bound by submitting an instrument of accession.²⁴

This discussion is confirmatory that initialing is generally not the act by which an international agreement is signed, but a preliminary step that confirms the authenticity of the agreed-upon text of the agreement. The initialing of the agreement reflects only the affirmation by the negotiating agents that the text of the prospective agreement is authentic. It is plausible for the negotiating agents to have initialed the agreement but for the principal to later repudiate the same before signing the agreement.

Article 12(2)(a) of the Vienna Convention on the Law of Treaties does provide that "the initialing of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed." At bar, it is evident that there had been no agreement that the mere initialing of the MOA-AD would constitute the signing of the agreement. In fact, it was explicitly provided in the MOA-AD that the signing of the agreement would take place on a date different from that when the document was initialed. Further, a formal signing ceremony independent of the initialing procedure was scheduled by the parties.

The fact that the MOA-AD reflects an initialing process which is independent of the affixation of signatures, which was to be accomplished on a specific date which was days after the MOA-AD was initialed, plainly indicates that the parties did not intend to legally bind the parties to the MOA through initialing. There is no cause under international law to assume that the MOA-AD, because it had been initialed, was already signed by the Philippine Government or the MILF even.

III.

The position of the MILF that the MOA-AD already creates binding obligations imposable on the Government cannot ultimately be sustained, even assuming that the initialing of the document had such binding effect. That position of the MILF supposes that the provisions of the MOA-AD are intrinsically valid under Philippine law. It takes no inquiry at great depth to be enlightened that the MOA-AD is incongruous with the Philippine Constitution.

The Constitution establishes a framework for the administration of government through political subdivisions. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays.²⁵ In addition, there shall be autonomous regions in Muslim Mindanao and the Cordilleras, in accordance with respective organic acts enacted by Congress.²⁶ The Constitution has adopted decentralization as a governing principle with respect to local government rule, and this especially holds true with respect to the autonomous regions. As we explained in Disomangcop v. DPWH:²⁷

Regional autonomy is the degree of self-determination exercised by the local government unit vis-à-vis the central government.

In international law, the right to self-determination need not be understood as a right to political separation, but rather as a complex net of legal-political relations between a certain people and the state authorities. It ensures the right of peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity, the establishment of priorities by the community's internal decision-making processes and the management of collective matters by themselves.

If self-determination is viewed as an end in itself reflecting a preference for homogeneous, independent nation-states, it is incapable of universal application without massive disruption. However, if self-determination is viewed as a means to an end—that end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protected—its continuing validity is more easily perceived.

Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government.

The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise the jurisdictional authority legally accorded to them to decide internal community affairs.

In the Philippine setting, regional autonomy implies the cultivation of more positive means for national integration. It would remove the wariness among the Muslims, increase their trust in the government and pave the way for the unhampered implementation of the development programs in the region. xxx²⁸

At the same time, the creation of autonomous regions does not signify the establishment of a sovereignty distinct from that of the Republic, as it can be installed only "within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines."²⁹

At present, the constitutional mandate of local autonomy for Muslim Mindanao has already been implemented. Republic Act No. 6734 (R.A. 6734), entitled "An Act Providing for An Organic Act for the Autonomous Region in Muslim Mindanao," was enacted and signed into law on 1 August 1989. The law contains elaborate provisions on the powers of the Regional Government and the areas of jurisdiction which are reserved for the National Government. The year 2001 saw the passage of Republic Act No. 9054, entitled "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." Rep. Act No. 9054 contains detailed provisions on the powers of the Regional Government and the retained areas of governance of the National Government.

Nothing prevents Congress from amending or reenacting an Organic Act providing for an autonomous region for Muslim Mindanao, even one that may seek to accommodate the terms of the MOA-AD. Nonetheless, the paramount requirement remains that any organic act providing for autonomy in Mindanao must be in alignment with the Constitution and its parameters for regional autonomy.

The following provisions from Article X of the Constitution spell out the scope and limitations for the autonomous regions in Mindanao and the Cordilleras:

Sec. 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 the 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 provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by majority o 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.

Sec. 20. Within its territorial 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.

Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government.

The autonomous regional government to be established through the organic act consists of the executive and legislative branches of government, both of which are elective. With respect to the judicial branch, the Constitution authorizes the organic acts to provide for special courts with jurisdiction limited over personal, family and property law. The scope of legislative powers to be exercised by the autonomous legislative assembly is limited to the express grants under Section 20, Article X. The national government retains responsibility over the defense and security of the autonomous regions. In addition, under Section 17, Article X, "[a]ll powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government."

The MOA-AD acknowledges that the Bangsamoro Juridical Entity (BJE) shall have authority and jurisdiction over the territory defined in the agreement as the ancestral domain of the Bangsamoro people. For the BJE to gain legal recognition under the Constitution, it must be identifiable as one of the recognized political subdivisions ordained in the Constitution. That is not the case. In fact, it is apparent that the BJE would have far superior powers than any of the political subdivisions under the Constitution, including the autonomous regional government for Muslim Mindanao.

The powers of government extended to the BJE are well in excess than that which the Constitution allocates to the autonomous regional government for Muslim Mindanao. For example, it was agreed upon in the MOA that:

[T]he 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...³⁰

Under the Constitution, the extent through which the autonomous regional government could establish a judicial system was confined to the extent of courts with jurisdiction over personal, property and family law.³¹ Obviously, the MOA-AD intends to empower the BJE to create a broader-based judicial system with jurisdiction over matters such as criminal law or even political law. This provision also derogates from the authority of the constitutional commissions, most explicitly the Civil Service Commission (CSC) and the Commission on Elections (COMELEC). The CSC administers the civil service, which embraces all branches, subdivisions, instrumentalities, and agencies of the Government.³² Yet the MOA-AD would empower the BJE to build, develop and maintain its own civil service. The BJE is likewise authorized to establish its own electoral institutions. Yet under the Constitution, it is the COMELEC which has the exclusive power to enforce and administer election laws.³³

Much of the MOA-AD centers on agreements relating to the exploitation of the economic resources over the proposed Bangsamoro homeland. The BJE is vested with jurisdiction, power and authority over land use, development, utilization, disposition and exploitation of natural resources within that territory. To that end, the BJE is empowered "to revoke or grant forest concessions, timber license, contracts or agreements in the utilization and exploitation of natural resources."³⁴ One provision of the MOA-AD makes it certain that it is the BJE which has exclusive jurisdiction in the exploitation of natural resources, particularly those utilized in the production of energy:

Jurisdiction and control over, and the right of exploring for, exploiting, producing and obtaining all potential sources of energy, petroleum, in situ, fossil fuel, mineral oil and natural gas, whether onshore or offshore, is vested in the Bangsamoro juridical entity as the party having control within its territorial jurisdiction, provided that in times of national emergency, when public interest so requires, the Central Government may, during the emergency, for a fixed period and under reasonable terms as may be agreed by both Parties, temporarily assume or direct the operations of such strategic resources.³⁵

These powers, which are unavailable to any of the political subdivisions, are reserved under the Constitution to the Republic as the owner of 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.³⁶

As a corollary to the BJE's power over the exploitation of natural resources, the MOA-AD accords it freedom "to enter into any economic cooperation and trade relations with foreign countries," including "the option to establish and open Bangsamoro trade mission in foreign countries with which it has economic cooperation agreements."³⁷ Such a "freedom" is contrary to the long-established principle that "[i]n our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations."³⁸

The MOA-AD even assures that "the Central Government shall take necessary steps to ensure the Bangsamoro juridical entity's participation in international meetings and events, e.g. ASEAN meetings and other specialized agencies of the United Nations."³⁹ These terms effectively denote a concession on the part of the Republic of the Philippines of a segregate legal personality to the BJE before international fora.

It bears reminder that regional autonomy under Article X of the Constitution remains "within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines". These provisions of the MOA-AD are extra-constitutional and diminish national sovereignty as they allocate to the BJE powers and prerogatives reserved under the Constitution to the State. Clearly, the framework of regional government that premises the MOA-AD is unworkable within the context of the Constitution.

IV.

A member of the GRP Peace Panel, Atty. Sedfrey Candelaria, had admitted to the Court during the oral arguments held on 29 August 2008 that the implementation of the MOA-AD would require amendments to the Constitution. That admission effectively concedes that the MOA-AD is inconsistent with the Constitution, and thus cannot acquire valid status under Philippine law.

It was evident thought on the part at least of the Philippine negotiating panel, that the price for peace in Mindanao involved in part, the amendment of the Philippine Constitution. There is nothing theoretically wrong with that notion, but because that choice is the most fundamental one the sovereign people can adopt, any binding commitment to enact charter change undertaken by an agent of government must be intensely scrutinized.

Any legally binding commitment to amend the Constitution can only come from the political institutions and the sovereign people who are empowered by the charter to amend the Constitution. The President nor any other member or office of the executive branch does not have the power to effect changes to the Constitution even if he wanted to in the paramount interest of the country and of the people. Any commitment to any entity on the part of the President or his political appointees to amend the Constitution is inherently ultra vires, because the Executive Branch does not have the innate power to effectuate such changes on its own. Neither does the President have the power to bind to positive action those whom the Constitution entrusts the power to amend the charter, namely; the Congress, the delegates to a constitutional convention, and the electorate.

Constitutional order cannot be sacrificed for expediency, even if in the name of peace in Mindanao. Assuming that the executive branch has in good faith become intractably convinced that it is necessary to amend the Constitution in order to obtain lasting peace in Mindanao, the consequent step should not be to make promises it has no power alone to keep, hoping against hope that the Congress and the voters would ultimately redeem the promises. Since constitutional amendments are involved, the ability of the executive branch to undertake any legally binding commitment to amend the Constitution can only be recognized, if at all, with the prior appropriate

authorization of Congress, acting with the specified majorities provided in Section 1(1), Article XVII of the Constitution.⁴⁰ Under such a mechanism, any constitutionally-oriented concessions offered by the Philippine government would contemporaneously bear the preliminary seal of approval by the people or institutions authorized to propose amendments to the Constitution, subject to final ratification by the people through a plebiscite.

The Government would have been spared of the embarrassment and outcry had it acted with more prudence by first securing the necessary political mandate to undertake charter change for the benefit of Mindanao, instead of acting brashly and rashly by acceding at the outset to the undertaking without consulting the Congress or the people. In the end, the issuance of the TRO by this Court proved highly providential, as even the Government wound up seeing the proverbial light before it was too late.

With the foregoing qualifications, I vote to dismiss the petitions and register my dissent from the result reached by the majority.

 

DANTE O. TINGA
Associate Justice

Footnotes

¹ I. Cruz. Constitutional Law (2007 ed.), at 23. See also R. Martin, Philippine Constitutional Law (1954 ed.), at 56-57.

² V. Mendoza, Judicial Review of Constitutional Question: Cases and Materials (2004 ed.), at 107.

³ 337 Phil. 654, 658 (1997).

⁴ G.R. No. 178830, 14 July 2008. Available at http://www.supremecourt.gov.ph/jurisprudence /2008/july2008/178830.htm.

⁵ Under Section 1, Rule 129 of the Rules of Court. "Judicial Notice, when mandatory. - A court shall take judicial notice, without introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions."

⁶ Supra note 4.

⁷ "MOA-AD will not be signed by gov't regardless of what SC decides on the issue - PGMA". From "The Official Website of the Government of the Philippines" (http://www.gov.ph/news/?i=22392), dated 3 October 2008.

⁸ G.R. No. 159085, 159103, and 159196, 3 February 2004, 421 SCRA 656.

⁹ Id. at 665.

¹⁰ W.M. Reisman, M. Arsanjani, S. Wiessner & G. Westerman, International Law in Contemporary Perspective (2004 ed.), at 1280.

¹¹ V. Reyes, "MILF: Pact a done deal after initialing," Malaya (6 August 2008) at http://www.malaya.com.ph/aug06/news3.htm (last visited, 11 October 2008).

¹² "Govt: Initials do not make draft MOA on ancestral domain a done deal ".GMANews.Tv, at http://www.gmanews.tv/story/111830/Govt-Initials-do-not-make-draft-MOA-on-ancestral-domain-a-done-deal (last visited, 11 October 2008).

¹³ B. Weston, R. Falk, H. Charlesworth & A. Strauss, International Law and World Order: A Problem-Oriented Coursebook (4^th ed), at 144; words in parenthesis supplied.

¹⁴ Id., citing Effect of Awards Made by the United Nations Administrative Tribunal, 1956 ICJ 53 (Advisory Opinion).

¹⁵ Id. at 151.

¹⁶ See Annex "B" to Petition in G.R. No. 183893.

¹⁷ See Civil Code, Art. 1318.

¹⁸ J. Vitug, III Civil Law: Obligations and Contracts (2003 ed.), at 108-109.

¹⁹ Id. at 109.

²⁰ J. Brownlie, Principles of Public International Law (6^th ed.), at 582.

²¹ A. Cassese, International Law (2^nd ed.), at 172.

²² S. Murphy, Principles of International Law (2006 ed.), at 68.

²³ M. Fitzmaurice, "The Anatomy of a Treaty," in International Law (Oxford), ed. by M.Evans.

²⁴ Supra note 10 at 1280-1281.

²⁵ Const., Art. X, Sec..

²⁶ Const., Sect. 15, in relation with Art. X, Sec. 1.

²⁷ G.R. No. 149848, 25 November 2004, 444 SCRA 203.

²⁸ Id. at 230-231.

²⁹ Id. at 229; citing Const., Art. X, Sec. 15. See also III Record 235, 12 August 1986:

MR. NOLLEDO. As I already stated, these autonomous regions are established within the framework of our national sovereignty. And in answer to the question of Commissioner Bengzon this morning that should there be rebels against the government, whether this will prevent the President from sending armed forces to suppress the rebellion, I said, "No, because of the expression ‘within the framework of national sovereignty.'" We are not granting sovereignty to the autonomous region. That is why the term "power of autonomous region" was appropriately used because as an accepted principle in constitutional law, sovereignty is indivisible. That is why we also maintain the provision in both Committee Report Nos. 21 and 25 that the President of the Philippines has supervisory power over autonomous regions to see to it that laws are faithfully executed. So, I find no inconsistency between the powers to be granted to autonomous regions and the sovereignty of the Republic of the Philippines.

³⁰ MOA-AD, Governance, Par. 8.

³¹ See Const., Art. X, Sec. 18.

³² See Const., Art. IX-B, Sec. 2(1) in relation to Sec. 1(1).

³³ Const., Art. IX-C, Sec. 2(1).

³⁴ MOA-AD, Resources, Par. 2(d).

³⁵ MOA-AD, Resources, Paragraph 5.

³⁶ See Art. XII, Sec. 2 which also provides "The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State."

³⁷ MOA-AD, Resources, par. 4.

³⁸ Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, 6 July 2005, 462 SCRA 622, 632; citing I. Cortes, The Philippine Presidency: A Study of Executive Power (1966), p. 187. "[T he President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states." Id.

³⁹ Id.

⁴⁰ "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 xxx"

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