The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center
on the extent of the powers conceded therein to the BJE. Petitioners
assert that the powers granted to the BJE exceed those granted to any
local government under present laws, and even go beyond those of the
present ARMM. Before assessing some of the specific powers that would
have been vested in the BJE, however, it would be useful to turn first
to a general idea that serves as a unifying link to the different
provisions of the MOA-AD, namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in
mind.
Association is referred to in paragraph
3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision, however, that the
MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility with
a structure of governance based on executive, legislative, judicial and
administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between the
Central Government and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may
have been intended to be defined more precisely in the still to be
forged Comprehensive Compact. Nonetheless, given that there is a concept
of "association" in international law, and the MOA-AD - by its
inclusion of international law instruments in its TOR- placed itself in
an international legal context, that concept of association may be
brought to bear in understanding the use of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one
state, the associate, delegates certain responsibilities to the other,
the principal, while maintaining its international status as a state.
Free associations represent a middle ground between integration and
independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the
Marshall Islands and the Federated States of Micronesia (FSM), formerly
part of the U.S.-administered Trust Territory of the Pacific Islands,151
are associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar,
indicating their very close ties with the U.S., yet they issue their own
travel documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.
According to their compacts of free association, the
Marshall Islands and the FSM generally have the capacity to conduct
foreign affairs in their own name and right, such capacity extending to
matters such as the law of the sea, marine resources, trade, banking,
postal, civil aviation, and cultural relations. The U.S. government,
when conducting its foreign affairs, is obligated to consult with the
governments of the Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either government.
In the event of attacks or threats against the
Marshall Islands or the FSM, the U.S. government has the authority and
obligation to defend them as if they were part of U.S. territory. The
U.S. government, moreover, has the option of establishing and using
military areas and facilities within these associated states and has the
right to bar the military personnel of any third country from having
access to these territories for military purposes.
It bears noting that in U.S. constitutional and
international practice, free association is understood as an
international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's
national constitution, and each party may terminate the association
consistent with the right of independence. It has been said that, with
the admission of the U.S.-associated states to the UN in 1990, the UN
recognized that the American model of free association is actually based
on an underlying status of independence.152
In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence.
Examples of states that have passed through the status of associated
states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states.
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS
SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own
behalf, petitioners,
vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents.
vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents.