Section 28 (on the policy of public disclosure) has likewise been similarly treated by the SC, which has stated its effectivity "need not await the passing of a statute. As Congress cannot revoke this principle, it is merely directed to provide the reasonable safeguards, the government cannot point to the absence of an implementing legislation as an excuse in not effecting such policy.

Province of North Cotabato vs. GRP Peace Panel on Ancestral Domain, et. al. GR. No. 183591, October 14, 2008

Facts:

In pursuit of peace in Mindanao, the Philippine Government and MILF agreed to undergo peace talks. The fruit of the talks is the Memorandum of Agreement on the Ancestral Domain (MOA-AD). The parties were about to sign the agreement but petitioners filed for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. The Court issued the TRO.

The MOA-AD essentially would create a Bangsamoro Juridical Entity (BJE), which would result to an associative relationship (a state within a state). The contents of the agreement in question are as follows:

·   Inclusion of the ARMM provinces and other areas in Mindanao in the BJE

·   The authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro

·   Jurisdiction over all natural resources within its “internal waters”

·   Sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the latter, through production sharing and economic cooperation agreement. 

·   The 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.

·   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.|| 

·   The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including those issued by the present ARMM.

·   The MOA-AD describes the relationship of the Central Government and the BJE as “associative”, characterized by shared authority and responsibility.

·   The MOA-AD provides that its provisions requiring “amendments to the existing legal framework” (pertaining to the Constitution and related substantive laws) 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. |||

Notes:

Ø  E.O. No. 3 is the basis for the respondent’s authority to negotiate with the MILF.

Ø  After the issuance of the TRO, the Executive Secretary pronounced that the government will no longer sign the agreement.

Ø  The MOA-AD is a product of several prior agreements (Tripoli Agreements)

Ø  Talks were made in Kuala Lumpur, Malaysia

Issue:

Whether or not the MOA-AD is constitutional. (NO)

Ruling:

Main: The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship (a state within a state) envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions from the President, dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people’s right to be consulted on relevant matters relating to the peace agenda.

·       One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society.

·       Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment.

·       Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.