G.R. No. 183591 October 14, 2008 THE PROVINCE OF NORTH COTABATO vs.THE GOVERNENT OF THE REP!B"IC OF THE PHI"IPPINE# PEACE PANE" ON ANCE#TRA" $OAIN %GRP&D E C I S I O NCARPIO ORA"E#, J.'Sub|ect of these consodated cases s the e(te)t o* t+e ,o-er.of the Presdent n pursung the peace process.Whethe facts surroundng ths controversy center on the armed conct n Mndanao between the government and the Moro Isamc Lberaton Front (MILF), the ega ssue nvoved has a bearng on a areas n the country where there has been a ong-standng armed conct. Yet agan, the Court s tasked toperform a decate baancng act. It must uncompromsngy deneate the bounds wthn whch the Presdent may awfuyexercse her dscreton, but t must do so n strct adherence to the Consttuton, est ts rung unduy restrcts the freedomof acton vested by that same Consttuton n the Chef Executve precsey to enabe her to pursue the peace process ehectvey.I. FACT!A" ANTECE$ENT# OF THE PETITION#On August 5, 2008, the Government of the Repubc of the Phppnes (GRP) and the MILF, through the Charpersons of ther respectve peace negotatng panes, were schedued to sgn a Memorandum of Agreement on the Ancestra Doman (MOA-AD) Aspect of the GRP-MILF Trpo Agreement on Peaceof 2001 n Kuaa Lumpur, Maaysa.The MILF s a rebe group whch was estabshed n March 1984 when, under the eadershp of the ate Saamat Hashm,t spntered from the Moro Natona Lberaton Front (MNLF) then headed by Nur Msuar, on the ground, among others, ofwhat Saamat perceved to be the manpuaton of the MNLF away from an Isamc bass towards Marxst-Maost orentatons.1The sgnng of the MOA-AD between the GRP and the MILF was not to materaze, however, for upon moton of pettoners, speccay those who ed ther cases before theschedued sgnng of the MOA-AD, ths Court ssued a Temporary Restranng Order en|onng the GRP from sgnng the same.The MOA-AD was preceded by a ong process of negotaton and the concudng of severa pror agreements between the two partes begnnng n 1996, when the GRP-MILF peace negotatons began. On |uy 18, 1997, the GRP and MILF Peace Panes sgned the Agreement on Genera Cessaton of Hosttes. The foowng year, they sgned the Genera Framework of Agreement of Intent on August 27, 1998.The Soctor Genera, who represents respondents, summarzes the MOA-AD by statng that the same contaned, among others, the commtment of the partes to pursue peace negotatons, protect and respect human rghts, negotate wth sncerty n the resouton and pacc settement of the conct, and refran from the use of threat or force to attan undue advantage whe the peace negotatons on the substantve agenda are on-gong.2Eary on, however, t was evdent that there was not gong to be any smooth sang n the GRP-MILF peace process. Towards the end of 1999 up to eary 2000, the MILF attacked a number of muncpates n Centra Mndanao and, n March2000, t took contro of the town ha of Kauswagan, Lanao de Norte.3 In response, then Presdent |oseph Estrada decared and carred out an "a-out-war" aganst the MILF.When Presdent Gora Macapaga-Arroyo assumed omce, the mtary ohensve aganst the MILF was suspended and the government sought a resumpton of the peace taks. The MILF, accordng to a eadng MILF member, ntay respondedwth deep reservaton, but when Presdent Arroyo asked the Government of Maaysa through Prme Mnster Mahathr Mohammad to hep convnce the MILF to return to the negotatng tabe, the MILF convened ts Centra Commttee to serousy dscuss the matter and, eventuay, decded to meet wth the GRP.4The partes met n Kuaa Lumpur on March 24, 2001, wth thetaks beng factated by the Maaysan government, the partes sgnng on the same date the Agreement on the Genera Framework for the Resumpton of Peace Taks Between the GRP and the MILF. The MILF thereafter suspended a ts mtary actons.5Forma peace taks between the partes were hed n Trpo, Lbya from |une 20-22, 2001, the outcome of whch was the GRP-MILF Trpo Agreement on Peace (Trpo Agreement 2001) contanng the basc prncpes and agenda on the foowng aspects of the negotaton:#ec/r0t1Aspect, Re+2b030t2t0o)Aspect, andA)ce.tr23 $o420)Aspect. Wth regard to the Ancestra Doman Aspect, the partes n Trpo Agreement 2001 smpy agreed "that the same be dscussed further by the Partes n ther next meetng."A second round of peace taks was hed n Cyber|aya, Maaysa on August 5-7, 2001 whch ended wth the sgnng of the Impementng Gudenes on the Securty Aspect of the Trpo Agreement 2001 eadng to a ceasere status betweenthe partes. Ths was foowed by the Impementng Gudenes on the Humantaran Rehabtaton and Deveopment Aspects of the Trpo Agreement 2001, whch was sgned on May 7, 2002 at Putra|aya, Maaysa. Nonetheess, there were many ncdence of voence betweengovernment forces and the MILF from 2002 to 2003.Meanwhe, then MILF Charman Saamat Hashm passed away on |uy 13, 2003 and he was repaced by A Ha| Murad, who was then the chef peace negotator of the MILF. Murad's poston as chef peace negotator was taken over by Mohagher Iqba.6In 2005, severa exporatory taks were hed between the partes n Kuaa Lumpur, eventuay eadng to the craftng of the draft MOA-AD n ts na form, whch, as mentoned, was set to be sgned ast August 5, 2008.II. #TATEENT OF THE PROCEE$ING#Before the Court s what s perhaps the most contentous "consensus" ever emboded n an nstrument - the MOA-AD whch s assaed prncpay by the present pettons bearng docket numbers 183591, 183752, 183893, 183951 and 183962.Commony mpeaded as respondents are the GRP Peace Pane on Ancestra Doman7 and the Presdenta Advser on the Peace Process (PAPP) Hermogenes Esperon, |r.On |uy 23, 2008, the Provnce of North Cotabato8 and Vce-Governor Emmanue Po ed a petton, docketed as G.R. No. 183591, for Mandamus and Prohbton wth Prayer for the Issuance of Wrt of Premnary In|uncton and Temporary Restranng Order.9 Invokng the rght to nformaton on matters of pubc concern, pettoners seek to compe respondents to dscose and furnsh them the compete and omca copes of the MOA-AD ncudng ts attachments, and to prohbt the sated sgnng of the MOA-AD, pendng the dscosure of the contents of the MOA-AD and the hodng of apubc consutaton thereon. Suppementary, pettoners pray that the MOA-AD be decared unconsttutona.10Ths nta petton was foowed by another one, docketed as G.R. No. 183552, aso for Mandamus and Prohbton11 ed by the Cty of Zamboanga,12 Mayor Ceso Lobregat, Rep. Ma. Isabee Cmaco and Rep. Erco Baso Faban who kewse pray for smar n|unctve reefs. Pettoners heren moreover pray that the Cty of Zamboanga be excuded from the Bangsamoro Homeand and/or Bangsamoro |urdca Entty and, n the aternatve, that the MOA-AD be decared nu and vod.By Resouton of August 4, 2008, the Court ssued a Temporary Restranng Order commandng and drectng pubc respondents and ther agents to cease and desst fromformay sgnng the MOA-AD.13 The Court aso requred the Soctor Genera to submt to the Court and pettoners the omca copy of the na draft of the MOA-AD,14 to whch she comped.15Meanwhe, the Cty of Igan16 ed a petton for In|uncton and/or Decaratory Reef, docketed as G.R. No. 183893, prayng that respondents be en|oned from sgnng the MOA-AD or, f the same had aready been sgned, from mpementng the same, and that the MOA-AD be decared unconsttutona. Pettoners heren addtonay mpead Executve Secretary Eduardo Ermta as respondent.The Provnce of Zamboanga de Norte,17 Governor Roando Yebes, Vce-Governor Francs Ovs, Rep. Ceca |aos|os-Carreon, Rep. Cesar |aos|os, and the members18 of the Sanggunang Panaawgan of Zamboanga de Norte ed on August 15, 2008 a petton for Certorar, Mandamus and Prohbton,19 docketed as G.R. No. 183951. They pray, interalia, that the MOA-AD be decared nu and vod and wthout operatve ehect, and that respondents be en|oned from executng the MOA-AD.On August 19, 2008, Ernesto Maceda, |e|omar Bnay, and Aquno Pmente III ed a petton for Prohbton,20docketed as G.R. No. 183962, prayng for a |udgment prohbtng and permanenty en|onng respondents from formay sgnng andexecutng the MOA-AD and or any other agreement derved therefrom or smar thereto, and nufyng the MOA-AD for beng unconsttutona and ega. Pettoners heren addtonay mpead as respondent the MILF Peace Negotatng Pane represented by ts Charman Mohagher Iqba.Varous partes moved to ntervene and were granted eave of court to e ther pettons-/comments-n-nterventon. Pettoners-n-Interventon ncude Senator Manue A. Roxas, former Senate Presdent Frankn Dron and Atty. Ade Tamano, the Cty of Isabea21 and Mayor Cherryyn Santos-Akbar, the Provnce of Sutan Kudarat22 and Gov. Suharto Mangudadatu, the Muncpaty of Lnamon n Lanao de Norte,23 Ruy Eas Lopez of Davao Cty and of the Bagobo trbe, Sangguniang Panlungsod member Marno Rdao and busnessman Ksn Buxan, both of Cotabato Cty; and awyersCaro Gomez, Gerardo Dg, Nesaro Awat, |oseto Asuag, Rchaex |agms, a of Paawan Cty. The Musm Lega Assstance Foundaton, Inc. (Musaf) and the Musm Mut-Sectora Movement for Peace and Deveopment (MMMPD) ed ther respectve Comments-n-Interventon.By subsequent Resoutons, the Court ordered the consodaton of the pettons. Respondents ed Comments on the pettons, whe some of pettoners submtted ther respectve Repes.Respondents, by Manfestaton and Moton of August 19, 2008, stated that the Executve Department sha thoroughy revew the MOA-AD and pursue further negotatons to address the ssues hured aganst t, and thus moved to dsmss the cases. In the succeedng exchange of peadngs, respondents' moton was met wth vgorous opposton from pettoners.The cases were heard on ora argument on August 15, 22 and29, 2008 that tacked the foowng prncpa ssues:1. Whether the pettons have become moot and academc() nsofar as the mandamus aspect s concerned, n vew of the dscosure of omcacopes of the na draft of the Memorandum of Agreement (MOA); and() nsofar as the prohibition aspect nvovng the Loca Government Unts s concerned, f ts consdered that consutaton has become fait accompli wth the nazaton of the draft;2. Whether the consttutonaty and the egaty of the MOA s rpe for ad|udcaton;3. Whether respondent Government of the Repubc of the Phppnes Peace Pane commtted grave abuse of dscreton amountng to ack or excess of |ursdcton when t negotated and ntated the MOA vs--vs ISSUES Nos. 4 and 5;4. Whether there s a voaton of the peope's rght tonformaton on matters of pubc concern (1987 Consttuton, Artce III, Sec. 7) under a state pocy offu dscosure of a ts transactons nvovng pubc nterest (1987 Consttuton, Artce II, Sec. 28) ncudng pubc consutaton under Repubc Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)|;|If t s n the amrmatve, whether prohibition under Rue 65 of the 1997 Rues of Cv Procedure s an approprate remedy;5. Whether by sgnng the MOA, the Government of the Repubc of the Phppnes woud be BINDING tsefa) to create and recognze the Bangsamoro |urdca Entty (B|E) as a separate state, or a |urdca, terrtora or potca subdvson not recognzed by aw;b) to revse or amend the Consttuton and exstng aws to conform to the MOA;c) to concede to or recognze the cam of theMoro Isamc Lberaton Front for ancestra doman n voaton of Repubc Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), partcuary Secton 3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)|;|If n the amrmatve, whether the Executve Branch has the authorty to so bnd the Government of the Repubc of the Phppnes;6. Whether the ncuson/excuson of the Provnce of North Cotabato, Ctes of Zamboanga, Igan and Isabea, and the Muncpaty of Lnamon, Lanao de Norte n/from the areas covered by the pro|ected Bangsamoro Homeand s a |ustcabe queston; and7. Whether desstance from sgnng the MOA derogates any pror vad commtments of the Government of the Repubc of the Phppnes.24The Court, thereafter, ordered the partes to submt ther respectve Memoranda. Most of the partes submtted ther memoranda on tme.III. OVERVIE7 OF THE OA8A$As a necessary backdrop to the consderaton of the ob|ectons rased n the sub|ect ve pettons and sx pettons-n-nterventon aganst the MOA-AD, as we as the two comments-n-nterventon n favor of the MOA-AD, the Court takes an overvew of the MOA.The MOA-AD dentes the Partes to t as the GRP and the MILF.Under the headng "Terms of Reference" (TOR), the MOA-AD ncudes not ony four earer agreements between the GRP and MILF, but aso two agreements between the GRP and the MNLF: the 1976 Trpo Agreement, and the Fna Peace Agreement on the Impementaton of the 1976 Trpo Agreement, sgned on September 2, 1996 durng the admnstraton of Presdent Fde Ramos.The MOA-AD aso dentes as TOR two oca statutes - the organc act for the Autonomous Regon n Musm Mndanao (ARMM)25 and the Indgenous Peopes Rghts Act (IPRA),26 and severa nternatona aw nstruments - the ILO Conventon No. 169 Concernng Indgenous and Trba Peopes n Independent Countres n reaton to the UN Decaraton on the Rghts of the Indgenous Peopes, and the UN Charter, among others.The MOA-AD ncudes as a na TOR the generc category of "compact rghts entrenchment emanatng from the regme of dar-ul-mua'hada (or terrtory under compact) and dar-ul-sulh (or terrtory under peace agreement) that partakes the nature of a treaty devce."Durng the heght of the Musm Empre, eary Musm |ursts tended to see the word through a smpe dchotomy: there was the dar-ul-Islam (the Abode of Isam) and dar-ul-harb (theAbode of War). The rst referred to those ands where Isamcaws hed sway, whe the second denoted those ands where Musms were persecuted or where Musm aws were outawed or nehectve.27 Ths way of vewng the word, however, became more compex through the centures as theIsamc word became part of the nternatona communty of natons.As Musm States entered nto treates wth ther neghbors, even wth dstant States and nter-governmenta organzatons, the cassca dvson of the word nto dar-ul-Islam and dar-ul-harb eventuay ost ts meanng. New terms were drawn up to descrbe nove ways of percevng non-Musm terrtores. For nstance, areas ke dar-ul-mua'hada (and of compact) and dar-ul-sulh (and of treaty) referred to countres whch, though under a secuar regme, mantaned peacefu and cooperatve reatons wth Musm States, havng been bound to each other by treaty or agreement. Dar-ul-aman (and of order), on the other hand, referred to countres whch, though not bound by treaty wth Musm States, mantaned freedom of regon for Musms.28It thus appears that the "compact rghts entrenchment" emanatng from the regme of dar-ul-mua'hada and dar-ul-sulh smpy refers to a other agreements between the MILF and the Phppne government - the Phppnes beng the and of compact and peace agreement - that partake of the nature of a treaty devce, "treaty" beng broady dened as "any soemn agreement n wrtng that sets out understandngs, obgatons, and benets for both partes whch provdes for a framework that eaborates the prncpesdecared n the |MOA-AD|."29The MOA-AD states that the Partes "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts wth ts man body.T+e 420) bo91 o* t+e OA8A$ 0. 90:09e9 0)to *o/r .tr2)9., )24e31, Co)ce,t. 2)9 Pr0)c0,3e., Terr0tor1, Re.o/rce., 2)9 Go:er)2)ce.A. CONCEPT# AN$ PRINCIP"E#Ths strand begns wth the statement that t s "the brthrghtof a Moros and a Indgenous peopes of Mndanao to dentfy themseves and be accepted as Bangsamoros.'" It denes "B2);.24oro ,eo,3e" as the natves or orgna nhabtants of Mndanao and ts ad|acent sands ncudng Paawan and the Suu archpeago at the time of conquest or colonization, and ther descendants whether mxed or of fu bood, ncudng ther spouses. 30Thus, the concept of "Bangsamoro," as dened n ths strand of the MOA-AD, ncudes not ony "Moros" as tradtonay understood even by Musms,31 but a ndgenous peopes of Mndanao and ts ad|acent sands. The MOA-AD adds that thefreedom of choce of ndgenous peopes sha be respected. What ths freedom of choce conssts n has not been speccay dened.The MOA-AD proceeds to refer to the "B2);.24oro +o4e32)9," the ownershp of whch s vested excusvey n the Bangsamoro peope by vrtue of ther prior rghts of occupaton.32 Both partes to the MOA-AD acknowedge that ancestra doman does not form part of the pubc doman.33The Bangsamoro peope are acknowedged as havng the rght to sef-governance, whch rght s sad to be rooted on ancestra terrtoraty exercsed orgnay under the suzeran authorty of ther sutanates and the Pat a Pangampong ku Ranaw. The sutanates were descrbed as states or "karajaankadatuan" resembng a body potc endowed wth a the eements of a naton-state n the modern sense.34The MOA-AD thus grounds the rght to sef-governance of the Bangsamoro peope on the past suzeran authorty of the sutanates. As gathered, the terrtory dened as the Bangsamoro homeand was rued by severa sutanates and, speccay n the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederaton of ndependent prncpates (pangampong) each rued by datus and sutans,none of whom was supreme over the others.35The MOA-AD goes on to descrbe the Bangsamoro peope as "the Frst Naton' wth dened terrtory and wth a system of government havng entered nto treates of amty and commerce wth foregn natons."The term "F0r.t N2t0o)" s of Canadan orgn referrng to thendgenous peopes of that terrtory, partcuary those known as Indans. In Canada, each of these ndgenous peopes s equay entted to be caed "Frst Naton," hence, a of them are usuay descrbed coectvey by the pura "Frst Natons."36 To that extent, the MOA-AD, by dentfyng the Bangsamoro peope as "t+e Frst Naton" - suggestng ts excusve enttement to that desgnaton - departs from the Canadan usage of the term.The MOA-AD then mentons for the rst tme the "B2);.24oro /.t t+e co)9/ct o* 2 ,3eb0.c0te to eEect/2te ?co)t0)/0);? co)./3t2t0o)., co)tr2r1 to re.,o)9e)t.L ,o.0t0o) t+2t ,3eb0.c0te 0. ?4ore t+2) ./Gc0e)t co)./3t2t0o)."136Further, E.O. No. 3 enumerates the functons and responsbtes of the PAPP, one of whch s to "|c|onductreguar daogues wth the Natona Peace Forum (NPF) and other peace partners to seek reevant nformaton, comments, recommendatons as we as to render approprate and tmey reports on the progress of the comprehensve peace process."137 E.O. No. 3 mandates the estabshment of the NPF to be "the prncpa forumfor the PAPP to consut wth and seek adv|c|e from the peace advocates, peace partners and concerned sectors of socety on both natona and oca eves, on the mpementaton of the comprehensve peace process, as we as for government|-|cv socety daogue and consensus-budng on peace agenda and ntatves."138I) F)e, E.O. No. 3 e.t2b30.+e. ,et0t0o)er.L r0;+t to be co)./3te9 o) t+e ,e2ce 2;e)92, 2. 2 coro332r1 to t+e co).t0t/t0o)23 r0;+t to 0)*or42t0o) 2)9 90.c3o./re.PAPP E.,ero) co440tte9 ;r2:e 2b/.e o* 90.cret0o)The PAPP co440tte9 ;r2:e 2b/.e o* 90.cret0o)when he*203e9to carry out the pertnent consutaton. The furtve process by whch the MOA-AD was desgned and craftedr/).co)tr2r1 to 2)9 0) e(ce.. o* t+e 3e;23 2/t+or0t1 , and amounts to a whmsca, caprcous, oppressve, arbtrary anddespotc exercse thereof.The Court may not, of course, requre the PAPP to conduct the consutaton in a particular wa" or manner. It may, however, requre hm to compy wth the aw and dscharge the functons within the authorit" granted by the Presdent.139Pettoners are not camng a seat at the negotatng tabe, contrary to respondents' retort n |ustfyng the dena of pettoners' rght to be consuted. Respondents' stance manfests the manner by whch they treat the saent provsons of E.O. No. 3 on peope's partcpaton. Such dsregard of the express mandate of the Presdent s not much dherent from superca conduct toward token provsos that border on cassc p servce.140 It ustrates a gross evason of postve duty and a vrtua refusa to performthe duty en|oned.As for respondents' nvocaton of the doctrne of executve prvege, t s not tenabe under the premses. The argument dees sound reason when contrasted wth E.O. No. 3's expct provsons on contnung consutaton and daogue onboth natona and oca eves. The e(ec/t0:e or9er e:e) reco;)0De. t+e e(erc0.e o* t+e ,/b30cL. r0;+t even beforethe GRP makes ts omca recommendatons or before the government prohers ts dente propostons.141 It bear emphass that E.O. No. 3 seeks to ect reevant advce, nformaton, comments and recommendatons from the peope through daogue.AT ALL EVENTS, respondents ehectvey waved the defense of executve prvege n vew of ther unquaed dscosure ofthe omca copes of the na draft of the MOA-AD. By uncondtonay compyng wth the Court's August 4, 2008 Resouton, wthout a prayer for the document's dscosure in camera, or wthout a manfestaton that t was compyng therewth e+ abundante ad cautelam.Pettoners' asserton that the Loca Government Code (LGC) of 1991 decares t a State pocy to "requre a natona agences and omces to conduct perodc consutatons wth approprate oca government unts, non-governmenta and peope's organzatons, and other concerned sectors of the communty before any pro|ect or program s mpemented n ther respectve |ursdctons"142 s we-taken. The LGC chapter on ntergovernmenta reatons puts esh nto ths avowed pocy:Prior 6onsultations Required. - No pro|ect or program sha be mpemented by government authortes unlessthe consutatons mentoned n Sectons 2 (c) and 26 hereof are comped wth, and pror approva of the sanggunan concerned s obtaned: Provded, That occupants n areas where such pro|ects are to be mpemented sha not be evcted uness approprate reocaton stes have beenprovded, n accordance wth the provsons of the Consttuton.143 (Itacs and underscorng supped)In 1ina# )r& $& 7on& Pa9o,144 the Court hed that the above-stated pocy and above-quoted provson of the LGU appy ony to natona programs or pro|ects whch are to be mpemented n a partcuar oca communty. Among the programs and pro|ects covered are those that are crtca to the envronment and human ecoogy ncudng those that may ca for the evcton of a partcuar group of peope resdng n the ocaty where these w be mpemented.145 T+e OA8A$ 0. o)e ,ec/302r ,ro;r24 t+2t /)eB/0:oc2331 2)9 /)032ter2331 :e.t. o-)er.+0, o*2 :2.t terr0tor1 to t+e B2);.24oro ,eo,3e,146 -+0c+ co/39 ,er:2.0:e31 2)9 9r2.t0c2331 re./3t to t+e 902.,or2 or 90.,32ce4e)t o* 2 ;re2t )/4ber o* 0)+2b0t2)t. *ro4 t+e0r tot23 e):0ro)4e)t.Wth respect to the ndgenous cutura communtes/ndgenous peopes (ICCs/IPs), whose nterests are represented heren by pettoner Lopez and are adversey ahected by the MOA-AD, the ICCs/IPs have, under the IPRA, the rght to partcpate fuy at a eves of decson-makng nmatters whch may ahect ther rghts, ves and destnes.147 The MOA-AD, an nstrument recognzng ancestra doman, faed to |ustfy ts non-compance wth thecear-cut mechansms ordaned n sad Act, 148whch entas, among other thngs, the observance of the free and pror nformed consent of the ICCs/IPs.Notaby, the IPRA does)otgrant the Executve Department or any government agency the power to deneate and recognze an ancestra doman camb" mere agreement or compromise. The recognton of the ancestra doman s the raison d'etre of the MOA-AD, wthout whch a other stpuatons or "consensus ponts" necessary must fa. In proceedng to make a sweepng decaraton on ancestra doman, wthout compyng wth the IPRA, whch s cted as one of the TOR of the MOA-AD, re.,o)9e)t. c3e2r31 tr2).ce)9e9 t+e bo/)92r0e. o* t+e0r 2/t+or0t1. As t seems, even the heart of the MOA-AD s st sub|ect to necessary changes to the ega framework. Whe paragraph 7 on Governance suspends the ehectvty of a provsons requrng changes to the ega framework, such cause s tsef nvad, as w be dscussed n the foowng secton.Indeed, ours s an open socety, wth a the acts of the government sub|ect to pubc scrutny and avaabe aways to pubc cognzance. Ths has to be so f the country s to reman democratc, wth soveregnty resdng n the peope and a government authorty emanatng from them.149ON THE #ECON$ #!B#TANTIVE I##!EWth regard to the provsons of the MOA-AD, there can be no queston that they cannot a be accommodated under the present Consttuton and aws. Respondents have admtted as much n the ora arguments before ths Court, and the MOA-AD tsef recognzes the need to amend the exstng ega framework to render ehectve at east some of ts provsons. Respondents, nonetheess, counter that the MOA-AD s free of any ega nrmty because any provsons theren whch are nconsstent wth the present ega framework w not be ehectve unt the necessary changes to that framework are made. The vadty of ths argument w be consdered ater. For now, the Court sha pass upon howT+e OA8A$ 0. 0)co).0.te)t -0t+ t+e Co).t0t/t0o) 2)9 32-. 2. ,re.e)t31 -or9e9.In genera, the ob|ectons aganst the MOA-AD center on the extent of the powers conceded theren to the B|E. Pettoners assert that the powers granted to the B|E exceed those granted to any oca government under present aws, and even go beyond those of the present ARMM. Before assessngsome of the specc powers that woud have been vested n the B|E, however, t woud be usefu to turn rst to a genera dea that serves as a unfyng nk to the dherent provsons of the MOA-AD, namey, the nternatona awconcept of association. Sgncanty, the MOA-AD expcty audes to ths concept, ndcatng that the Partes actuay framed ts provsons wth t n mnd.Association s referred to n paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It s n the ast mentoned provson, however, that the MOA-AD most ceary uses t to descrbe the envsoned reatonshp between the B|E and the Centra Government.4. T+e re32t0o).+0, bet-ee) t+e Ce)tr23 Go:er)4e)t 2)9 t+e B2);.24oro >/r090c23 e)t0t1 .+233 be2..oc02t0:e c+2r2cter0De9 b1 .+2re9 2/t+or0t1 2)9 re.,o).0b030t1wth a structure of governance based on executve, egsatve, |udca and admnstratve nsttutons wth dened powers and functons n the comprehensve compact. A perod of transton sha be estabshed n a comprehensve peace compact specfyng the reatonshp between the Centra Government and the B|E. (Emphass and underscorng supped)The nature of the "associative" reatonshpmay have been ntended to be dened more precsey n the st to be forgedComprehensve Compact. Nonetheess, gven that there s a concept of "assocaton" n nternatona aw, and the MOA-AD- by ts ncuson of nternatona aw nstruments n ts TOR- paced tsef n an nternatona ega context, that concept of assocaton may be brought to bear n understandng the use of the term "associati$e" n the MOA-AD.Ketner and Resman state that|a|n assocaton s formed when t-o .t2te. of unequa power vountary estabsh durabe nks. In the basc mode, o)e .t2te, t+e 2..oc02te, 9e3e;2te. cert20) re.,o).0b030t0e. to t+e ot+er, t+e ,r0)c0,23, -+03e 420)t20)0); 0t. 0)ter)2t0o)23 .t2t/. 2. 2 .t2te. Free 2..oc02t0o). re,re.e)t 2 40993e ;ro/)9 bet-ee) 0)te;r2t0o) 2)9 0)9e,e)9e)ce. x x x150 (Emphass and underscorng supped)For purposes of ustraton, the Repubc of the Marsha Isands and the Federated States of Mcronesa (FSM), formery part of the U.S.-admnstered Trust Terrtory of the Pacc Isands,151 are assocated states of the U.S. pursuant toa Compact of Free Assocaton. The currency n these countres s the U.S. doar, ndcatng ther very cose tes wth the U.S., yet they ssue ther own trave documents, whch s a mark of ther statehood. Ther nternatona ega status as states was conrmed by the UN Securty Counc and by ther admsson to UN membershp.Accordng to ther compacts of free assocaton, the Marsha Isands and the FSM generay have the capacty to conduct foregn ahars n ther own name and rght, such capacty extendng to matters such as the aw of the sea, marne resources, trade, bankng, posta, cv avaton, and cutura reatons. The U.S. government, when conductng ts foregn ahars, s obgated to consut wth the governments of the Marsha Isands or the FSM on matters whch t (U.S. government) regards as reatng to or ahectng ether government.In the event of attacks or threats aganst the Marsha Isandsor the FSM, the U.S. government has the authorty and obgaton to defend them as f they were part of U.S. terrtory. The U.S. government, moreover, has the opton of estabshng and usng mtary areas and factes wthn these assocated states and has the rght to bar the mtary personne of any thrd country from havng access to these terrtores for mtary purposes.It bears notng that n U.S. consttutona and nternatona practce, free assocaton s understood as an nternatona assocaton between soveregns. The Compact of Free Assocaton s a treaty whch s subordnate to the assocated naton's natona consttuton, and each party may termnate the assocaton consstent wth the rght of ndependence. It has been sad that, wth the admsson of the U.S.-assocated states to the UN n 1990, the UN recognzed that the Amercan mode of free assocaton s actuay based on an underyng status of ndependence.152In nternatona practce, the "associated state" arrangement has usuay been used as a tr2).0t0o)23 9e:0ceof former coones on ther way to fu ndependence. Exampes of states that have passed through the status of assocated states as a transtona phase are Antgua, St. Ktts-Nevs-Angua, Domnca, St. Luca, St. Vncent and Grenada. A have snce become ndependent states.153Back to the MOA-AD, t contans many provsons whch are consstent wth the nternatona ega concept of association, speccay the foowng: the B|E's capacty to enter nto economc and trade reatons wth foregn countres, the commtment of the Centra Government to ensure the B|E's partcpaton n meetngs and events n the ASEAN and the specazed UN agences, and the contnung responsbty of the Centra Government over externa defense. Moreover, the B|E's rght to partcpaten Phppne omca mssons bearng on negotaton of border agreements, envronmenta protecton, and sharng of revenues pertanng to the bodes of water ad|acent to or between the sands formng part of the ancestra doman, resembes the rght of the governments of FSM and the Marsha Isands to be consutedby the U.S. government on any foregn ahars matter ahectng them.These provsons of the MOA ndcate, among other thngs, that the Partes 204e9 to :e.t 0) t+e B