GENERAL SANTOS CITY  — Retired Chief Justice Artemio V. Panganiban, in his Inquirer column last Sunday, declared as “victory for the constitution” the Supreme Court decision that the Memorandum of Agreement on Ancestral Domain between the Philippine Government and the Moro Islamic Liberation Front is unconstitutional. That cannot be disputed

However, it must be asked: Who is the loser?

North Cotabato Vice-Gov. Emmanuel Piñol, the first to file a petition against the MOA-AD with the Supreme Court, in rejoicing for the “victory” said, “… we also fervently pray that peace would finally come to our troubled land.”

Former Senate President Franklin Drilon, another petitioner, while celebrating the “victory” with the city officials of Iligan City, said, “There is every reason that the peace process should be pursued because there are disagreements that should be settled.”

What Piñol and Drilon said in “victory”, other petitioners, opponents and critics of the MOA-AD must also be saying. They have scuttled the vehicle of peace and are now praying for peace to come. In winning, they “pray” to recover the price of their “victory” – the peace process.

Who then is the loser? Peace!

Panganiban also described the ponencia or decision as “elegant, well researched and well cadenced”. That, too, cannot be disputed. It “elegantly” pinned down the MOA-AD for (a) lack of consultation and (b) violations of the constitution – the two main substantive issues..

No Consultations

In failing to consult the people, the peace advocates, the civil society, the local government officials in Mindanao and members of Congress, President Arroyo, her peace advisers and negotiators violated not only Executive Order No. 3 and two laws but also the Constitution. For their sin of omission, Peace is in Limbo.

EO 3 mandates the Presidential Adviser on the Peace Process to convene as his/her advisory body the National Peace Forum. To properly advice the PAPP, the NPF is tasked to conduct forums in the national and local levels about the progress of peace talks and other matters concerning the peace process. The NPF had not been convened, so no consultations on the MOA-AD had been done.

Was it proper to sacrifice the peace process to atone for the sins of the Arroyo government?

Under the Constitution and laws the people have the right to be consulted. If for some reasons this right has been violated, is the violation enough cause to derail the peace process? Why did the Court not just order Arroyo, the PAPP and the GRP negotiators to conduct the consultations? It might be late but the purpose of consultations could still be satisfied. Whatever objections there would be could still be addressed in the negotiation of the Comprehensive Compact.

What happened is patently the court doctrine. A crime is not a crime – not a violation of law – no matter how serious if the evidence has been obtained illegally, in which case, technicality can mute justice for the offended to be just to the offender. What contradictions of rule of law in democracy! Technicality nullified the peace process.

Must Go

The initial petition against the MOA-AD on July 23 filed by the governor and vice-governor of North Cotabato, followed by the city mayor and other officials of Zamboanga City, was to restrain the government from signing the agreement and compel it to furnish them official copies of the agreement. Unofficial copies had already been leaked to the media.

After the Court had issued a temporary restraining order on August 4 and the official copies had been furnished the petitioners, supplemental petitions were filed – with new petitioners filing their own – asking the Court to declare the MOA-AD unconstitutional, null and void.

In the pursuit of the peace process, rights had been violated and interests thrown in conflict. The petitioners were in no mood to dialogue to save the peace process but were bent on aborting it. Behind the petitions could be seen the ugly head of politics rearing.

To the Court, doing the judicial review was a duty. The issue of constitutionality must be resolved regardless of what would happen to the peace process.

To the petitioners? In the name of democracy, the MOA-AD and the peace process must go.

Two Provisions

In its review of the four strands of the Ancestral Domain:

1. The Court appeared not to have considered in-depth Concepts and Principles. It noted that “the term ‘First Nation’ is of Canadian origin” but “departs from the Canadian usage of the term”. Later, it deemed “ancestral domain” in MOA-AD as contrary to the concept of ancestral domain in RA 8371 or the Indigenous People’s Rights Act.
2. It noted that in Territory, the BJE and the Republic of the Philippines “shall exercise joint jurisdiction, authority and management over all natural resources” in BJE “territorial waters” but not in its internal waters; “the sharing of minerals on the territorial waters” is not similarly provided “with respect to the internal waters of the BJE”.
3. It had no comment on Resources.
4. In Governance, the Court noted the “associative” relationship “of the Central Government and the BJE” without comment although this would be discussed extensively later. Referring to Consensus 7, Governance, it commented: “As will be discussed later, much of the present controversy hangs on the legality of this provision.”

Indeed, Consensus 4 and Consensus 7, Governance are the two provisions that dominated the discussions on constitutionality.

Are the Philippine Constitution, the Court and the offended petitioners that unforgiving that the GRP and MILF negotiators could not be given the chance to address the unconstitutionality of the two provisions, as well as of a few others, in order to balance Moro self-determination and Philippine sovereignty and territorial integrity and to save the peace process?

Five Counts

Of the second substantive issue — “Do the contents of the MOA-AD violate the Constitution and laws?” — the Court said: “The MOA-AD is inconsistent with the Constitution and law as presently worded.” The MOA-AD is guilty of unconstitutionality on five counts.

First Count: “[T]he powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM.” The excessive power is attributed to the “associative” character – by “shared authority and responsibility” – of the relationship between the GRP and the BJE. (Consensus 4, Governance)

Second Count: “the concept of association is not recognized under the present Constitution.”

Third Count: The BJE “is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM” — being “a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states”.

Fourth Count: “The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution.”

Fifth Count: “[T]he MOA-AD is also inconsistent with prevailing statutory laws, among which are R.A. No. 9054, or the Organic Act of the ARMM, and the IPRA (R.A. No. 8371).”

These specific sub-issues have been well discussed to prove the unconstitutionality of MOA-AD under the present Constitution beyond doubt. It has been declared “contrary to law and the Constitution”. Any hope for it – now dead – to animate the peace process is moot. But what chance could it have had the Court been a little liberal? [To Be Continued]

One Response to “Looking into SC Decision (1)”

• 1
  juharto
  November 1st, 2008 16:19

  The supreme court of Republic of the Philippines has no idealistic. MILF Central Committee were no longer consultation to the Phil. Constitution as long as the local government due to the content of its was very dirty. If the MILF follow the ruled of Phil. Constitution there will be no political/constitution changed. Some comment that the MOA AD was unconstitutional, yes thats why MILF wants to separate their homeland because the Phil. Constitution they were not accepted.

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