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ASSOCIATED STATE when President Arroyo asked the Government

of Malaysia through Prime Minister Mahathir


RIGHT TO SLEF-DETERMINATION Mohammad to help convince the MILF to return
to the negotiating table, the MILF convened its
The province of North Cotabato Central Committee to seriously discuss the
matter and, eventually, decided to meet with
vs. The GRP
the GRP.
FACTS:
The parties met in Kuala Lumpur on March 24,
On August 5, 2008, the Government of the 2001, with the talks being facilitated by the
Malaysian government, the parties signing on
Republic of the Philippines (GRP) and the MILF,
through the Chairpersons of their respective the same date the Agreement on the General
Framework for the Resumption of Peace Talks
peace negotiating panels, were scheduled to
sign a Memorandum of Agreement on the Between the GRP and the MILF. The MILF
thereafter suspended all its military actions.
Ancestral Domain (MOA-AD) Aspect of the GRP-
MILF Tripoli Agreement on Peace of 2001 in
Formal peace talks between the parties were
Kuala Lumpur, Malaysia.
held in Tripoli, Libya from June 20-22, 2001, the
The signing of the MOA-AD between the GRP outcome of which was the GRP-MILF Tripoli
Agreement on Peace (Tripoli Agreement 2001)
and the MILF was not to materialize, however,
for upon motion of petitioners, specifically containing the basic principles and agenda on
the following aspects of the negotiation:
those who filed their cases before the
scheduled signing of the MOA-AD, this Court Security Aspect, Rehabilitation Aspect, and
Ancestral Domain Aspect. With regard to the
issued a Temporary Restraining Order enjoining
the GRP from signing the same. Ancestral Domain Aspect, the parties in Tripoli
Agreement 2001 simply agreed "that the same
The MOA-AD was preceded by a long process of be discussed further by the Parties in their next
negotiation and the concluding of several prior meeting."
agreements between the two parties beginning
in 1996, when the GRP-MILF peace negotiations
began. On July 18, 1997, the GRP and MILF
In 2005, several exploratory talks were held
Peace Panels signed the Agreement on General
between the parties in Kuala Lumpur,
Cessation of Hostilities. The following year,
eventually leading to the crafting of the draft
they signed the General Framework of
MOA-AD in its final form, which, as mentioned,
Agreement of Intent on August 27, 1998.
was set to be signed last August 5, 2008.
The Solicitor General, who represents
Before the Court is what is perhaps the most
respondents, summarizes the MOA-AD by
contentious "consensus" ever embodied in an
stating that the same contained, among
instrument - the MOA-AD which is assailed
others, the commitment of the parties to
principally by the present petitions bearing
pursue peace negotiations, protect and respect
docket numbers 183591, 183752, 183893,
human rights, negotiate with sincerity in the
183951 and 183962.
resolution and pacific settlement of the
conflict, and refrain from the use of threat or Commonly impleaded as respondents are the
force to attain undue advantage while the GRP Peace Panel on Ancestral Domain7 and the
peace negotiations on the substantive agenda Presidential Adviser on the Peace Process
are on-going. (PAPP) Hermogenes Esperon, Jr.

When President Gloria Macapagal-Arroyo


assumed office, the military offensive against
the MILF was suspended and the government ISSUES: WON it is constitutional for
sought a resumption of the peace talks. The violating article 10 of the constitution?
MILF, according to a leading MILF member,
initially responded with deep reservation, but
WON it is unconstitutional for violating TOR- placed itself in an international legal
the right to self determination? context, that concept of association may be
brought to bear in understanding the use of the
HELD: (as to concept of ASSOCIATED term "associative" in the MOA-AD.
STATE)
(meaning of association)
The MOA-AD is inconsistent with the
Constitution and laws as presently [a]n association is formed when two states of
worded. unequal power voluntarily establish durable
links. In the basic model, one state, the
In general, the objections against the MOA-AD associate, delegates certain
center on the extent of the powers conceded responsibilities to the other, the principal,
therein to the BJE. Petitioners assert that the while maintaining its international status
powers granted to the BJE exceed those as a state. Free associations represent a
granted to any local government under present middle ground between integration and
laws, and even go beyond those of the present independence. x x x150
ARMM. Before assessing some of the specific
powers that would have been vested in the BJE, In international practice, the "associated state"
however, it would be useful to turn first to a arrangement has usually been used as a
general idea that serves as a unifying link to transitional device of former colonies on
the different provisions of the MOA-AD, namely, their way to full independence. Examples
the international law concept of association. of states that have passed through the status
Significantly, the MOA-AD explicitly alludes to of associated states as a transitional phase are
this concept, indicating that the Parties actually Antigua, St. Kitts-Nevis-Anguilla, Dominica, St.
framed its provisions with it in mind. Lucia, St. Vincent and Grenada. All have since
become independent states.
Association is referred to in paragraph 3 on
TERRITORY, paragraph 11 on RESOURCES, (Manifestations of an associated
and paragraph 4 on GOVERNANCE. It is in state in the MOA-AD)
the last mentioned provision, however, that the
MOA-AD most clearly uses it to describe the Back to the MOA-AD, it contains many
envisioned relationship between the BJE provisions which are consistent with the
and the Central Government. international legal concept of association,
specifically the following: the BJE's capacity
4. The relationship between the Central to enter into economic and trade relations
Government and the Bangsamoro juridical with foreign countries,--/ the commitment
entity shall be associative characterized of the Central Government to ensure the
by shared authority and responsibility BJE's participation in meetings and events
with a structure of governance based on in the ASEAN and the specialized UN
executive, legislative, judicial and agencies,--/ and the continuing
administrative institutions with defined powers responsibility of the Central Government
and functions in the comprehensive compact. A over external defense.
period of transition shall be established in a
comprehensive peace compact specifying the Moreover, the BJE's right to participate in
relationship between the Central Government Philippine official missions bearing on
and the BJE. negotiation of border agreements,
environmental protection, and sharing of
The nature of the "associative" relationship revenues pertaining to the bodies of water
may have been intended to be defined more adjacent to or between the islands forming part
precisely in the still to be forged of the ancestral domain, resembles the right of
Comprehensive Compact. Nonetheless, given the governments of FSM and the Marshall
that there is a concept of "association" in Islands to be consulted by the U.S. government
international law, and the MOA-AD - by its on any foreign affairs matter affecting them.
inclusion of international law instruments in its
These provisions of the MOA indicate, among Indeed, BJE is a state in all but name as it
other things, that the Parties aimed to vest in meets the criteria of a state laid down in
the BJE the status of an associated state the Montevideo Convention,154 namely, a
or, at any rate, a status closely permanent population, a defined territory,
approximating it. agovernment, and a capacity to enter into
relations with other states.
(The concept of association is not
recognized under the present Even assuming arguendo that the MOA-AD
Constitution) would not necessarily sever any portion of
Philippine territory, the spirit animating it -
No province, city, or municipality, not which has betrayed itself by its use of the
even the ARMM, is recognized under our concept of association - runs counter to the
laws as having an "associative" national sovereignty and territorial
relationship with the national integrity of the Republic.
government. Indeed, the concept implies
powers that go beyond anything ever The defining concept underlying the
granted by the Constitution to any local or relationship between the national
regional government. It also implies the government and the BJE being itself
recognition of the associated entity as a contrary to the present Constitution, it is
state. The Constitution, however, does not not surprising that many of the specific
contemplate any state in this jurisdiction other provisions of the MOA-AD on the
than the Philippine State, much less does it formation and powers of the BJE are in
provide for a transitory status that aims to conflict with the Constitution and the
prepare any part of Philippine territory for laws.
independence.

Even the mere concept animating many of the


MOA-AD's provisions, therefore, already (AS TO RIGHT TO SELF-
requires for its validity the amendment of DETERMINATION)
constitutional provisions, specifically the
following provisions of Article X: Article II, Section 2 of the Constitution
states that the Philippines "adopts the
SECTION 1. The territorial and political generally accepted principles of
subdivisions of the Republic of the Philippines international law as part of the law of the
are the provinces, cities, municipalities, land."
and barangays. There shall be autonomous
regions in Muslim Mindanao and the International law has long recognized the right
Cordilleras as hereinafter provided. to self-determination of "peoples," understood
not merely as the entire population of a State
SECTION 15. There shall be created but also a portion thereof. Xxx "the right of a
autonomous regions in Muslim Mindanao and in people to self-determination is now so widely
the Cordilleras consisting of provinces, cities, recognized in international conventions that
municipalities, and geographical areas sharing the principle has acquired a status beyond
common and distinctive historical and cultural convention' and is considered a general
heritage, economic and social structures, and principle of international law."
other relevant characteristics within the
framework of this Constitution and the Among the conventions referred to are the
national sovereignty as well as territorial International Covenant on Civil and
integrity of the Republic of the Political Rights161 and the International
Philippines. Covenant on Economic, Social and
Cultural Rights162 which state, in Article 1
(The BJE is a far more powerful of both covenants, that all peoples, by
entity than the autonomous region virtue of the right of self-determination,
recognized in the Constitution) "freely determine their political status
and freely pursue their economic, social, XXX the exceptional cases in which the
and cultural development." right to external self-determination can
arise, namely, 1.) where a people is under
The people's right to self-determination should colonial rule, 2.) is subject to foreign
not, however, be understood as extending to a domination or exploitation outside a
unilateral right of secession. A distinction colonial context, and - less definitely but
should be made between the right of internal asserted by a number of commentators -3.) is
and external self-determination. blocked from the meaningful exercise of
its right to internal self-determination.
"(ii) Scope of the Right to Self-
determination. Turning now to the more specific category of
indigenous peoples, this term has been
126. The recognized sources of international used, in scholarship as well as international,
law establish that the right to self- regional, and state practices, to refer to
determination of a people is normally groups with distinct cultures, histories,
fulfilled through (internal self- and connections to land (spiritual and
determination) - a people's pursuit of its otherwise) that have been forcibly
political, economic, social and cultural incorporated into a larger governing
development within the framework of an society. These groups are regarded as
existing state. A right to (external self- "indigenous" since they are the living
determination )(which in this case descendants of pre-invasion inhabitants of
potentially takes the form of the lands now dominated by others.
assertion of a right to unilateral
secession) arises in only the most Otherwise stated, indigenous peoples, nations,
extreme of cases and, even then, under or communities are culturally distinctive groups
carefully defined circumstances. Xxx that find themselves engulfed by settler
societies born of the forces of empire and
* (External self-determination can be conquest.164 Examples of groups who have
defined as in the following statement been regarded as indigenous peoples are the
from the Declaration on Friendly Maori of New Zealand and the aboriginal
Relations, supra,) peoples of Canada.
The establishment of a sovereign and As with the broader category of "peoples,"
independent State, the free association indigenous peoples situated within states do
or integration with an independent State not have a general right to independence or
or the emergence into any other political secession from those states under international
status freely determined by a people law,165 but they do have rights amounting to
constitute modes of implementing the right of what was discussed above as the right to
self-determination by that people. internal self-determination.

127. The international law principle of


(Right of indigenous cultural people to
self-determination has evolved within a
self-determination)
framework of respect for the territorial
integrity of existing states. The various The UN General Assembly adopted the United
international documents that support the Nations Declaration on the Rights of Indigenous
existence of a people's right to self- Peoples (UN DRIP) through General Assembly
determination also contain parallel statements Resolution 61/295. The vote was 143 to 4,
supportive of the conclusion that the exercise the Philippines being included among
of such a right must be sufficiently limited to those in favor, and the four voting against
prevent threats to an existing state's territorial being Australia, Canada, New Zealand, and the
integrity or the stability of relations between U.S. The Declaration clearly recognized the
sovereign states. right of indigenous peoples to self-
determination, encompassing the right to
(When external self-determination may be
autonomy or self-government, to wit:
exercised)
Article 3 While the President does not possess
Indigenous peoples have the right to self- constituent powers - as those powers may be
determination. By virtue of that right they exercised only by Congress, a Constitutional
freely determine their political status and freely Convention, or the people through initiative
pursue their economic, social and cultural and referendum - she may submit proposals for
development. Xxx and other articles. constitutional change to Congress in a manner
that does not involve the arrogation of
The UN DRIP, while upholding the right of constituent powers.
indigenous peoples to autonomy, does not
obligate States to grant indigenous peoples the From the foregoing discussion, the principle
near-independent status of an associated state. may be inferred that the President - in the
All the rights recognized in that document are course of conducting peace negotiations - may
qualified in Article 46 as follows: validly consider implementing even those
policies that require changes to the
1. Nothing in this Declaration may be Constitution, but she may not unilaterally
interpreted as implying for any State, people, implement them without the intervention of
group or person any right to engage in any Congress, or act in any way as if the
activity or to perform any act contrary to the assent of that body were assumed as a
Charter of the United Nations orconstrued as certainty.
authorizing or encouraging any action
which would dismember or impair, totally
or in part, the territorial integrity or
political unity of sovereign and
independent States.

Even if the UN DRIP were considered as part of


the law of the land pursuant to Article II, Saguisag vs. OCHOA
Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD so Saguisag EDCA case
as to render its compliance with other laws
unnecessary. Facts

The petitions 1 before this Court


question the constitutionality of the Enhanced
(Invalidity of the MOA since not Defense Cooperation Agreement (EDCA)
between the Republic of the Philippines and the
made by congress through a law United States of America (U.S.). Petitioners
as mandated by consti) allege that respondents committed grave
abuse of discretion amounting to lack or excess
of jurisdiction when they entered into EDCA
with the U.S. claiming that the instrument
The President may not, of course, unilaterally violated multiple constitutional provisions. In
implement the solutions that she considers reply, respondents argue that petitioners lack
viable, but she may not be prevented from standing to bring the suit. To support the
submitting them as recommendations to legality of their actions, respondents invoke the
Congress, which could then, if it is minded, act 1987 Constitution, treaties, and judicial
upon them pursuant to the legal procedures for precedents.
constitutional amendment and revision. In
particular, Congress would have the option,
pursuant to Article XVII, Sections 1 and 3 of the Issue:
Constitution, to propose the recommended
amendments or revision to the people, call a
1. w/n the case is ripe for judicial
constitutional convention, or submit to the
electorate the question of calling such a review
convention. 2. Is the president empowered to
enter agreement involving military
and defense internationally
3. w/n the the EDCA is required by the rules. In a number of cases,
unconstitutional for lacking the this Court has indeed taken a liberal stance
required concurrence of the towards the requirement of legal standing,
especially when paramount interest is involved.
Senate.
Indeed, when those who challenge the official
act are able to craft an issue of transcendental
Ruling
significance to the people, the Court may
exercise its sound discretion and take
1st issue: These are the specific safeguards cognizance of the suit. It may do so in spite of
laid down by the Court when it exercises its the inability of the petitioners to show that they
power of judicial review. Guided by these have been personally injured by the operation
pillars, it may invoke the power only when the of a law or any other government act.
following four stringent requirements are
satisfied: (a) there is an actual case or An exhaustive evaluation of the
memoranda of the parties, together with the
controversy; (b) petitioners possess locus
oral arguments, shows that petitioners have
standi; ( c) the question of constitutionality is presented serious constitutional issues that
raised at the earliest opportunity; and ( d) the provide ample justification for the Court to set
issue of constitutionality is the !is mota of the aside the rule on standing. The transcendental
case. Of these four, the first two conditions will importance of the issues presented here is
be the focus of our discussion. rooted in the Constitution itself. Section 25,
Article XVIII thereof, cannot be any clearer:
The power of judicial review has since there is a much stricter mechanism required
before foreign military troops, facilities, or
been strengthened in the 1987 Constitution.
bases may be allowed in the country. The DFA
The scope of that power has been extended to has already confirmed to the U.S. Embassy that
the determination of whether in matters "all internal requirements of the Philippines x x
traditionally considered to be within the sphere x have already been complied with." It
of appreciation of another branch of behooves the Court in this instance to take a
government, an exercise of discretion has been liberal stance towards the rule on standing and
attended with grave abuse. The expansion of to determine forthwith whether there was
grave abuse of discretion on the part of the
this power has made the political question
Executive Department.
doctrine "no longer the insurmountable
obstacle to the exercise of judicial power or the We therefore rule that this case is
impenetrable shield that protects executive a proper subject for judicial review.
and legislative actions from judicial inquiry or
review." 2nd Issue: In light of this constitutional duty, it
is the President's prerogative to do whatever is
The petitioner has shown actual legal and necessary for Philippine defense
case and controversy. Section 25, Article interests. It is no coincidence that the
XVIII of the constitutional provision on the faithful
Constitution, is clear that the presence of execution clause was followed by that on the
foreign military forces in the country shall only President's commander-in-chief powers,which
be allowed by virtue of a treaty concurred in by are specifically granted during extraordinary
the Senate. Hence, the performance of an events of lawless violence, invasion, or
official act by the Executive Department that rebellion. And this duty of defending the
led to the entry into force of an executive country is unceasing, even in times when there
agreement was sufficient to satisfy the actual is no state of lawlesss violence, invasion, or
case or controversy requirement. rebellion. At such times, the President has full
powers to ensure the faithful execution of the
While petitioners Saguisag et al, laws.
do not have legal standing, they
nonetheless raised issues involving It would therefore be remiss for the
matters of transcendental importance. President and repugnant to the faithful-
According to the SC even if the general execution clause of the Constitution to do
assertion of the petitioner that they have a nothing when the call of the moment requires
standing as citizen for failure to allege the increasing the military's defensive capabilities,
specific possible or present violation of public which could include forging alliances with
and citizen rights, the case has transcendental states that hold a common interest with the
importance to disregard the direct injury Philippines or bringing an international suit
against an offending state. Clearly the law to allow foreign military bases, troops, or
President has the prerogative to enter facilities to enter the Philippines, except under
the same. a treaty concurred in by the Senate. Hence, the
constitutionally restricted authority pertains to
Although the President has the the entry of the bases, troops, or facilities, and
power to enter into international not to the activities to be done after entry.
agreement, it is mandated to comply with
the limitation prescribed in the exercise Executive agreements are defined by
of such right. the court an international agreements
embodying adjustments of detail carrying out
The plain meaning of the Constitution well-established national policies and traditions
prohibits the entry of foreign military bases, and those involving arrangements of a more or
troops or facilities, except by way of a treaty less temporary nature. It is settled by the
concurred in by the Senate - a clear limitation Constitutional Commission, Courts
on the President's dual role as defender of the jurisprudence and statutes, that executive
State and as sole authority in foreign relations. agreement do not require the concurrence of
the Senate. One of the distinguishing features
Despite the President's roles as of executive agreements is that their
defender of the State and sole authority in validity and effectivity are not affected by a
foreign relations, the 1987 Constitution lack of Senate concurrence.
expressly limits his ability in instances when it
involves the entry of foreign military bases, Is executive agreement same as
troops or facilities. The initial limitation is found international agreement?
in Section 21 of the provisions on the Executive
Department: "No treaty or international The framers specifically deliberated on
agreement shall be valid and effective unless whether the general term "international
concurred in by at least two thirds of all the agreement" included executive agreements,
Members of the Senate." and whether it was necessary to include an
express proviso that would exclude executive
SECTION 25. After the expiration in agreements from the requirement of Senate
1991 of the Agreement between the Republic concurrence. After noted constitutionalist Fr.
of the Philippines and the United States of Joaquin Bernas quoted the Court's ruling in
America concerning Military Bases, foreign Eastern Sea Trading, the Constitutional
military bases, troops, or facilities shall not be Commission members ultimately decided that
allowed in the Philippines except under a the term "international agreements" as
treaty duly concurred in by the Senate and, contemplated in Section 21, Article VII, does
when the Congress so requires, ratified by a not include executive agreements, and that a
majority of the votes cast by the people in a proviso is no longer needed. Because it merely
national referendum held for that purpose, and involves arrangements on the implementation
recognized as a treaty by the other contracting of existing policies, rules, laws, or agreements.
State. They are concluded (1) to adjust the details of
a treaty; (2) pursuant to or upon confirmation
It is quite plain that the Transitory by an act of the Legislature; or (3) in the
Provisions of the 1987 Constitution intended to exercise of the President's independent powers
add to the basic requirements of a treaty under under the Constitution. The raison d'etre of
Section 21 of Article VII. This means that both executive agreements hinges on prior
provisions must be read as additional constitutional or legislative authorizations.
limitations to the President's overarching
executive function in matters of defense and Difference between treaties and
foreign relations. Executive Agreements

The President, however, may enter First, executive agreements must


into an executive agreement on foreign remain traceable to an express or implied
military bases, troops, or facilities, if (a) authorization under the Constitution, statutes,
it is not the instrument that allows the or treaties. The absence of these precedents
presence of foreign military bases, puts the validity and effectivity of executive
troops, or facilities; or (b) it merely aims agreements under serious question for the
to implement an existing law or treaty. main function of the Executive is to enforce the
Note that the provision "shall not be Constitution and the laws enacted by the
allowed" is a negative injunction. This wording Legislature, not to defeat or interfere in the
signifies that the President is not authorized by performance of these rules. In turn, executive
agreements cannot create new international the treaty are meant to be specified and
obligations that are not expressly allowed or identified infurther agreements. EDCA is
reasonably implied in the law they purport to one such agreement.
implement.
According to Article I of EDCA, one of
Second, treaties are, by their very the purposes of these activities is to maintain
nature, considered superior to executive and develop, jointly and by mutual aid, the
agreements. Treaties are products of the acts individual and collective capacities of both
of the Executive and the Senate unlike countries to resist an armed attack. It further
executive agreements, which are solely states that the activities are in furtherance of
executive actions. Because of legislative the MDT and within the context of the VFA. Just
participation through the Senate, a treaty is like the Terms of Reference mentioned in Lim,
regarded as being on the same level as a mere adjustments in detail to implement the
statute. If there is an irreconcilable conflict, a MDT and the VFA can be in the form of
later law or treaty takes precedence over one executive agreements.
that is prior. An executive agreement is treated
differently. Executive agreements that are The new EDCA would grant American
inconsistent with either a law or a treaty are troops, ships and planes rotational access to
considered ineffective. Both types of facilities of the Armed Forces of the Philippines
international agreement are nevertheless but not permanent bases which are
subject to the supremacy of the Constitution. prohibited under the Philippine Constitution -
with the result of reducing response time
The power to defend the State and to should an external threat from a common
act as its representative in the international adversary crystallize.
sphere inheres in the person of the President.
This power, however, does not crystallize into EDCA does not allow the presence
absolute discretion to craft whatever of U.S.-owned or -controlled military
instrument the Chief Executive so desires. As facilities and bases in the Philippines In
previously mentioned, the Senate has a role in this case, EDCA explicitly provides that
ensuring that treaties or international ownership of the Agreed Locations remains
agreements the President enters into, as with the Philippine govemment. What U.S.
contemplated in Section 21 of Article VII of the personnel have a right to, pending mutual
Constitution, obtain the approval of two-thirds agreement, is access to and use of these
of its members. locations. From the text of EDCA itself, Agreed
Locations are territories of the Philippines that
the U.S. forces are allowed to access and use.
3rd Issue: The President had the choice to By withholding ownership of these areas and
enter into EDCA by way of an executive retaining unrestricted access to them, the
agreement or a treaty. Executive government asserts sovereignty over its
agreements may cover the matter of territory. That sovereignty exists so long as the
foreign military forces if it merely Filipino people exist.
involves detail adjustments. EDCA is
consistent with the content, purpose, and The provisions in EDCA dealing with
framework of the MDT and the VFA. Agreed Locations are analogous to those in the
aforementioned executive agreements. Instead
Manifest in the provisions (MDT and of authorizing the building of temporary
VFA) is the abundance of references to the structures as previous agreements have done,
creation of further "implementing EDCA authorizes the U.S. to build permanent
arrangements" including the identification of structures or alter or improve existing ones for,
"activities [to be] approved by the Philippine and to be owned by, the Philippines. EDCA is
Government." To determine the parameters of clear that the Philippines retains ownership of
these implementing arrangements and altered or improved facilities and newly
activities, we referred to the content, purpose, constructed permanent or non-relocatable
and framework of the MDT and the VFA. structures. Under EDCA, U.S. forces will also be
allowed to use facilities and areas for "training;
What can be gleaned from the x x x; support and related activities; x x x;
provisions of the VF A, the joint report of temporary accommodation of personnel;
the Senate committees on foreign communications" and agreed activities.
relations and on national defense and
security, and the ruling of this Court in As it is, EDCA is not
Lim is that the "activities" referred to in constitutionally infirm. As an executive
agreement, it remains consistent with
existing laws and treaties that it purports
to implement.