PROVINCE OF NORTH COTABATO vs.

GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL
DOMAIN

J. AZCUNA SEPARATE OPINION:

 J. Azcuna generally concurs and agrees with the ponentia but says that if the MOA-
AD had been signed,
o it would have provided a basis that the Philippines was bound by its terms as a
unilateral declaration made before representatives of the international community.

 It is very rare that a Court will find that a unilateral statement will blind a state
o More caution is shown when it is a question of unilateral declaration not directed
to any particular recipient

 Precedents are not strictly followed in international law

o International law may formulate new rules out of the factual situation of the MOA-
AD.
o May make a unilateral declaration binding under a new type of situation.

J. REYES SEPARATE OPINION:

 ISSUES may be compressed as follows: (1) W/N petitions and petitions-in-intervention

have become moot due to supervening events; (2) W/N the MOA-AD is
constitutional

 Petitions and petitions-in-intervention have become moot due to supervening events.

However, they should be decided given the exceptional circumstances, following
well known precedents.
o This is because government will NOT SIGN the MOA-AD in its present form or any
other form.
o BUT it is hornbook doctrine that courts will decide cases otherwise moot:
 There is grave violation of the Constitution
 Paramount public interest involved
 Constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public
 Case is capable of repetition yet evading review.

 The MOA-AD is unconstitutional.

o The GRP went beyond their marching orders from the President
 The parties intended MOA-AD not to be bound by the fundamental law.
The Constitution is supposed to be the one to conform to the MOA-AD, not
the other way around.
o The commitment of GRP Panel to the MILF to change the constitution so it
conforms to the MOA-AD violates the SEPARATION OF POWERS PRINCIPLE.

o MOA-AD contains several provisions that appear unconstitutional

 1. MOA-AD creates new political subdivision, the BJE
2. Creation of BJE is prohibited, even assuming that the MOA-AD only
attempts to create it as an autonomous region.
3. MOA-AD creates Bangsamoro Homeland as an ancestral domain (but
there is non compliance with RA 8371 or the IPRA)
4. Under the MOA-AD, the BJE is vested with jurisdiction, powers and
authority over land use, development, utilization, disposition and
exploitation of natural resources within the Bangsamoro Homeland.
5. BJE also has powers to enter into any economic cooperation and trade
relations with foreign countries (power solely of the president only)
6. Without benefit of any factual determination, MOA-AD dismembers parts of
Mindanao, turning it into a geographic Dalmatian. It creates Bangsamoro
Homeland and distinct “territorial waters” within the RP baselines. (Contrary
to Art. 1 Sec 1 of the 1987 Constitution)
7. MOA-AD grants BJE plenary power to undo executive acts and delegate
to the BJE the authority to revoke proclamations and issuances.
 (UNDUE DELEGATION OF EXECUTIVE POWER)
8. MOA-AD empowers BJE to build, develop, and maintain its own
institutions;
 Contrary to COMELEC, police force, AFP, judicial power of SC,
monetary authority of BSP, economic planning agencies.

 Reyes believes that the aborted MOA-AD is a setback to the government.

o But such setback is temporary and not a permanent one.
o The path to peace is long, but can be travelled
o The government should be commended for its effort to bring lasting peace to the
South.
o But it also needs to be reminded that any negotiation it enters into, shuld be
WITHIN THE PARAMETERS OF THE CONSTITUTION
 Reyes votes to GRANT the petitions and declare MOA-AD as unconstitutional.

J. CHICO-NAZARO SEPARATE OPINION:

 The issue of MOA-AD’s constitutionality has obviously become moot.

o In light of the pronouncement of the Executive to already abandon the MOA

 For court to be able to practice its power of judicial review, the four requisites must
be met.
o There must be an actual case or controversy = the case must not be moor or
academic based on extra-legal or other similar considerations
o Moot and Academic = purpose has become stale; issues involved have become
academic or dead.
o Simply stated, there is nothing left to resolve as the determination thereof has been
overtaken by subsequent events

 The MOA-AD has not even been signed, an will never be. Its provisions will never
come to effect and the MOA-AD will always remain a draft = no actual
case/controversy
 o For the court to rule upon a supposed unconstitutionality of MOA-AD will merely
be an academic exercise.
o It would only deliver an opinion or advice on hypothetical or abstract violations of
constitutional rights.

 It is beyond the Court’s power to enjoin Executive Department from entering into
agreements similar to the MOA in the future.

 Peace negotiations are never simple

o Mindanao still elusive of the present terms of the Constitution
o Solution to the peace problem lies beyond the present Constitution

 The Court at most can exhort the Executive Department to keep in mind that it must
negotiate and secure peace in Mindanao under terms which are most beneficial or
the country AS A WHOLE
o Not just one group of Muslim insurgents
o Transparency and consulration with all major players are essential

 Court must not allow itself be mired in controversies affecting each step of the
peace process in Mindanao.
o Court should respect the political nature of the issues at bar and exercise judicial
restraint until an actual controversy be brought before it.

 J. CHICO-NAZARO votes to GRANT the Motion to Dismiss filed by the Solicitor

General and DISMISS petitions at bar for being MOOT and ACADEMIC

J. VELASCO JR. DISSENTING OPINION

 Courts will not touch the issue of constitutionality save when the decision upon
the constitutional question is absolutely necessary to the final determination of
the case
o Constitutionality issue must be the lis mota of the case
o But, the issue assailing the constitutionality of a government act should be
avoided whenever possible.
o Vote to DISMISS the consolidated petitions and petitions-in-intervention
principally seeking to nullify the MOA-AD

 NON-Joinder of MILF: Fatal

o The importance of joining the MILF in this case cannot be over emphasized.
o The unimpleaded party is a party to the proposed MOA-AD no less and the
prospective agreement sought to be annulled involves ONLY two parties : GRP
and MILF.
o OBVIOUS RESULT: Court will not be able to fully adjudicate and legally decide
the case without joinder of the MILF.

 Court cannot nullify a prospective agreement which will affect and legally bind
one party without making said decision binding on the other contracting party
o Court will not write finis to a dispute.
 o A court should always refrain from rendering decision that will bring about the
absurdities or will infringe Sec. 1 Article 8 of the Constitution.

 The unsigned draft of MOA-AD cannot plausibly be the subject of judicial review.
o The MOA-AD is but a proposal on defined consensus points
o The parties to the MOA do not have what it has to have a perfected and
enforceable contract.
o MOA-AD is not a document, but literally just a piece of paper which the parties
cannot look up to as an independent source of obligation

o The court coulf have entered the picture if the MOA-AD were signed. Only
then can we say there is a consummated executive act to speak of.

 The element of justiciable controversy is palpably absent in the petitions at the

bar
o The court cannot reasonably formulate guiding and controlling principles for the
bench and the bar based on a NON-EXISTING ancestral domain agreement
o Nor by ANTICIPATING what the executive will do or agree in the future peace
negotiating table
o NO MOA-AD TO SPEAK OF, SINCE ITS PERFECTION OR EFFECTIVITY WAS
ABORTED BY SUPERVENING EVENTS (there was a TRO issued)
o There has been no justiciable controversy to be resolved or dismissed from the
moment the first petition was interposed, because the MOA-AD is not signed.

 SEPARATE POWERS TO BE GUARDED

o Restrain one branch from inappropriate interferences with another
o This is what the petitioners seek: through the overruling writs of the Court, to
enjoin the PPNP, or its equivalent, and necessarily the President, from signing
the proposed MOA-AD and from negotiating similar future agreements.

J. NACHURA DISSENTING OPINION

 When the issue concerns a public right, it is sufficient that the petitioner is a
citizen and has interest in the execution of laws
o There must be personal stake in the outcome of the controversy
o He must allege that he has been subject to some burdens or penalties by reason
of the statute or act complained of.

 To qualify for adjudication, it is necessary that the actual controversy be EXTANT

at all stages of review
o Not necessarily at the time the complaint was filed
o The controversy must be definite and concrete, but it is not enough that the
controversy exists at the outset
o It must be extant at all stages; this is to say that the case is ripe for judicial
determination.

 In the case at bench, there is no gainsaying that at the time of the filing of the
initial petitions up to the issuance of the TRO, there was an actual extant
controversy
 o The timeliness of the signing of the MOA-AD in front of foreign dignitaries may
have prevented a possible constitutional transgression.
o The timeliness provided impetus sufficient for the Executive Department to
“review” its own acts, and to abort the entire MOA-AD.

 Court cannot review an inexistent agreement, an unborn contract that does not
purport to create rights or impose duties that are legally demandable.
o There can be no certiorari because the MOA-AD will not be signed “in its present
form, or in any other form”.
o Neither will the remedy of prohibition lie against a GRP Peace Panel that no
longer exists.

 Grave abuse of discretion can characterize only consummated acts (or

omissions), not an almost consummated act.
o NACHURA DISAGREES: “MOA-AD, being an almost consummated act of
guaranteeing amendments to the legal framework is, by itself, sufficient to
constitute grave abuse of discretion.”

 It is beyond the authority of any negotiating panel to commit the implementation

of any consensus point or a legal framework which is inconsistent with the
present Constitution or existing statutes.
o The outcome of the constitutional process cannot be predetermined or predicted
with certainty as it is made to appear by the consensus points of the MOA-AD.

J. BRION SEPARATE CONCURRING OPINION:

 Judicial power must be based on an actual justiciable controversy

o At whose core is the existence of a case involving rights which are legally
demandable and enforceable
o Without this feature, courts have no jurisdiction to act.
o Even petition for declaratory relief requires an actual case or controversy and
must be ripe for adjudication.

 Where an issue is moot on its face, the application of any of the exceptions
should be subjected to a strict test
o Mootness principle is “not a magical formula that automatically dissuades courts
in resolving cases”
 EXCEPTIONS also not magic formulas to allow court to review despite
mootness
o When an issue is moot, there must be a STRICT TEST before deviation from
general rule.
o Court should carefully test the exceptions to be applied from the perspectives of
both legality and practical efforts
 Show by these standards that the issue absolutely requires to be resolved

 After respondents declared that MOA-AD would not be signed, there was nothing
left to prohibit and no rights on the part of the petitioners continued to be at risk
of violation
 o MOA-AD did not push thru due to the TRO issued by the Court.
o Intervening events subsequent to the filing of the petition had no effect on the
petitions
 Signing of the MOA-AD had been stopped by the TRO
 BRION: this is disturbing because petitions for prohibition presented live
controversies up to and beyond the issuance of the Court’s TRO.
 BRION: they were only rendered moot by the above mentioned
intervening events.
o By the intervening events, respondents effectively acknowledged that MOA-AD
would not be signed until this Court had spoken on the constitutional and
statutory grounds cited in the petition.
o Unsigned MOA-AD = moot and academic case; no more useful purpose

 Requisites to be satisfied for a case to dodge dismissal for mootness under the
“capable of repetition yet evading review” exception
o TWO REQUISITES
 The duration of the challenged action must be too short to be fully
litigated prior to its cessation or expiration
 There must be reasonable expectation that the same complaining party
will be subjected to the same action again.