Wednesday, October 22, 2008

Full disclosure

In the very recent case of THE PROVINCE OF NORTH COTABATO, et. al. vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), G.R. No. 183591, October 14, 2008, and companion cases, the Philippine Supreme Court declared as contrary to the Philippine Constitution the controversial and widely condemned “Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001”.

The basic procedural and substantive doctrines cited in the said decision are summarized below for purposes of legal research of the visitors of this blog insofar as basic principles affecting the Justice System and the Rule of Law are concerned, notable among which are the exceptions to the moot and academic rule, the liberality in the interpretation of the ripeness for judicial review rule, the expanded scope of the locus standi rule, the constitutional right of full access to information on matters of public concern, and the duty of public officials to conduct local consultations. Thus:

1. The petitions are “ripe for adjudication”. The failure of respondents “to consult the local government units or communities affected” constitutes a departure by respondents from their mandate under E.O. No. 3.

2. The respondents exceeded their authority by the act of “guaranteeing amendments to the Constitution”.

3. Any alleged “violation of the Constitution by any branch of government” is a proper matter for judicial review.

4. As the petitions “involve constitutional issues” which are of “paramount public interest or of transcendental importance”, the petitioners have the requisite locus standi.

5. The non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the petitions. The present petitions are an exception to the “moot and academic” principle in view of:

(a) the grave violation of the Constitution involved;

(b) the exceptional character of the situation and paramount public interest;

(c) the need to formulate controlling principles to guide the bench, the bar, and the public; and

(d) the fact that the case is capable of repetition yet evading review.

6. The “people’s right to information on matters of public concern” under Sec. 7, Article III of the Constitution is in splendid symmetry with the “state policy of full public disclosure of all its transactions involving public interest” under Sec. 28, Article II of the Constitution. The right to information guarantees the “right of the people to demand information”, while Section 28 recognizes the “duty of officialdom to give information even if nobody demands”. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same “self-executory nature”, subject only to reasonable safeguards or limitations as may be provided by law.

7. The contents of the MOA-AD are a matter of paramount public concern involving public interest in the highest order.

8. E.O. No. 3 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.

9. 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.

10. 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.

11. 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.

12. The invocation of the doctrine of “executive privilege” as a defense to the general right to information or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of “executive secrecy”.

13. 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.

14. 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 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.

15. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel.

16. As the said 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”.

17. While the MOA-AD would not amount to an “international agreement or unilateral declaration” binding on the Philippines under international law, respondents’ act of “guaranteeing amendments” is, by itself, already a constitutional violation that renders the MOA-AD fatally defective.

Visit to download the text of the decision.