GENERAL SANTOS CITY — The Supreme Court has ruled the Memorandum of Agreement on Ancestral Domain between the Philippine Government and the Moro Islamic Liberation Front as unconstitutional, finding that the specific provisions and concepts of the MOA-AD cannot be reconciled with the present Constitution and laws. On legal grounds, the Court may be right; but, on the import of the MOA-AD, the Court IS wrong.

The primary issue or concern is not the constitutionality of the MOA-AD but its import on the peace process in Mindanao. Is it an effective solution to the centuries-old Mindanao Problem?

Import

The MOA-AD is a creative and innovative political solution crafted by the GRP and MILF negotiation panels in three years and eight months of diligent, exhaustive deliberation. They have explored the history of the Mindanao Problem, its roots, and the proper political solution according to the history and roots of the problem.

The peace panels may have overstepped constitutional bounds. However, constitutionality becomes a secondary issue or concern to the urgency of the peace process. Can whatever unconstitutionality the MOA-AD suffers not be remedied so as — as Cotabato Archbishop Orlando B. Quevedo, O.M.I. said — to essentially balance “Moro self-determination and the territorial integrity and sovereignty of the Philippines”? This is the key to the solution of the Mindanao Problem, the most efficient vehicle on the path of the peace process.

There have been proposals to amend the 1987 Constitution to attract more foreign investments by doing away with investor-unfriendly provisions like portions of Article XII, Section 2. The bottom line is: The Constitution may be amended if it blocks the interest of the country and the people contrary to its primary purpose.

Is the resolution of the Mindanao Problem to bring peace in Mindanao not for paramount national interest? But the Constitution stands in the way? Can the same bottom line not be applicable to the MOA-AD issue?

Not Inclined

It appears that the Supreme Court was not inclined to consider this bottom line for the sake of peace in Mindanao as it surely would should the amendment be to encourage foreign investors to come, notably to Mindanao. Chief Justice Reynato Puno said that peace negotiations should not violate “the parameters of powers marked in the Constitution.” This means the negotiators are not allowed to agree on matters that would need the amendment of the Constitution.

The Court considers the MOA-AD not a vehicle of the peace process but just “a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace” of June 2001. If not to clear the way of the peace process, amending the Constitution relative to the MOA-AD will be purposeless.

In reference to Consensus No, 7 of Governance, the Court rebuked the President and the GRP panel for virtually guaranteeing beyond their authority the eventual passage of the necessary amendments to the laws and the Constitution to suit the MOA-AD. That would usurp the powers vested only in Congress, a Constitutional Assembly or to the People’s Initiative. If Consensus No. 7 is wrong, correct it. Don’t scuttle the entire MOA-AD.

Given No Weight

What does the pertinent agreement in Consensus 7 say?

Paragraph 2 says: “Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact and upon affecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.”

But Consensus 7 must be related to Consensus 8 which enumerates 10 institutions “necessary for developing a progressive Bangsamoro society”. The necessary amendments will concern these institutions. As the details of these institutions “shall be discussed in the negotiation of the Comprehensive Compact”, the specific details of any necessary amendment will not be known until taken up at that same time.

The unconstitutionality of some provisions of the MOA-AD as found by the Supreme Court we don’t dispute. But these are not yet implementable. Consensus 7 provides, “The Parties agree that the mechanism and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.”

Hence, the Comprehensive Compact is very vital. However, it appears that the Supreme Court has not given it any weight. The Court writes that “as the clause (Consensus 7) is worded” it – [despite the Comprehensive Compact] – “does not cure its (MOA-AD) defects” but will only guarantee the amendment of the Constitution to suit the MOA-AD.

How the Court can misjudge! Without the Comprehensive Compact, the MOA-AD is just an agreement in principle. Metaphorically, the MOA-AD is the soul; the CC is the living body – the final agreement to be implemented. Whatever unconstitutionality there is in the MOA-AD must be remedied during the CC negotiation to make the CC implementable. Congress will not enact into law a constitutionally infirmed CC.

The Court is unaware of the GRP-MILF desire to make the agreement implementable. Only through the negotiation of the Comprehensive Compact can they do this by ironing out the kinks of the MOA-AD. Trust that the MILF negotiators bargain hard but can reconsider to make a deal at a reasonable price.

So What?

The Court resolved: “The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION.” We don’t dispute that. But what happens to the peace process?

The Court scuttled the MOA-AD on the road of the peace process to block it. What alternative course has it offered?

As stated at the outset, the primary issue or concern is the peace process; the MOA-AD is its vehicle. As such, its unconstitutionality has become a secondary issue or concern that must be remedied for the sake of the peace process.

The Court offers: “The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace. … Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original.”

The Government is ready to do this for the Solicitor General has already manifested before the Court that “the Executive Department shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled against it”. Obviously, the intention is to do this without signing the MOA-AD.

Yet, this option is not reassuring. It is right; but confining the negotiation to the Constitution as the Decision decrees is wrong – is not conducive to the peace process that must balance the Moro self-determination and the territorial integrity and sovereignty of the Philippines.

Restricting the peace negotiation to the Constitution is not negotiation but dictation. Peace negotiation like that between the Government and the MILF which calls for political settlement should have the freedom or leeway to explore all possible options and alternatives including amendments to the Constitution.

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