Talking to the wrong party

It is well and good that the Supreme Court (SC) decided to rule on the validity of the Memorandum of Agreement on the Bangsamoro ancestral domain (MOA-AD) instead of simply dismissing the case on the ground that it has become “moot and academic” just because of Malacañang’s manifestation that it will not sign the same in its present or in any other form.

To be sure the SC is just adhering to the well entrenched and long established principle that even if the issues in a case have already become moot and academic, its resolution on the merits, like the present case, is still necessary in view of (1) the grave violation of the Constitution involved; (2) the exceptional character of the situation and paramount public interest; (3) the need to formulate controlling principles to guide the bench, the bar and the public; and (4) the fact that the case is capable of repetition yet evading review.

Although the SC justices appear to be sharply divided in their decision, with 8 justices (CJ Puno, JJ Carpio-Morales, the ponente, Quisumbing, Ynares-Santiago, Carpio, Azcuna, Austria-Martinez, and Reyes) opting to rule on the validity of the MOA-AD, while 7 justices (Tinga, Corona, Chico-Nazario, Leonardo-de Castro, Nachura, Velasco and Brion) resolving to junk the petition due to the mootness of the issues raised, there are actually 12 justices who expressed the view that the said MOA-AD is contrary to law and the Constitution. Justices Tinga, joined by Corona, Chico-Nazario and Leonardo-de Castro while voting to dismiss the case because it has already become moot and academic also made additional comments that the said MOA-AD violates the Constitution.

Therefore, the razor-thin line seemingly dividing the SC justices is only because they are treading on different grounds, with the majority tackling the substantial issues while the dissenters working or mainly relying on purely technical grounds.

The SC ruled that the MOA-AD is contrary to the Constitution for the following reasons:

First, it compromises the “sovereignty and territorial integrity of the Philippines”. According to the majority speaking through Justice Carpio Morales, not only the specific provisions of the MOA-AD but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the Bangsamoro Juridical Entity (BJE) are unconstitutional, for it presupposes that the associated entity is a state and implies that the same is on its way to independence. These provisions and concept are repugnant to the Constitution because it will result in the virtual surrender of part of Philippine territorial sovereignty and would have bound the government to the creation of a separate Bangsamoro state having its own territory, government, civil institutions and armed forces: 

Second, it would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention or the people themselves through the process of initiative as it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. The SC said that since neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee, the only way the Executive can assure the outcome of the amendment process is through undue influence or interference with that process.

Third, the “furtive process by which the MOA-AD was designed” violates the people’s right to information on matters of public concern under Article III Section 7 of the Constitution. The SC said that the complete and effective exercise of such right which is in “splendid symmetry with the state policy of full disclosure of all its transactions involving public interest under Article II Section 28”, necessitates that its complementary provision on full public disclosure derive the same self executory nature, subject only to reasonable safeguards or limitations as may be provided by law.

The SC also held that the failure to consult the local government units or communities violates at least three pertinent laws: E.O. No. 3 itself from which the Panel derives its mandate is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus building; the Local Government Code (R.A. 7160) that requires all national offices to conduct consultations before any project or program that may call for the eviction of a particular group of people residing in such locality is implemented; the Indigenous People’s Rights Act (R.A 8371) requiring the observance of free and prior informed consent of the indigenous cultural communities in the recognition and delineation of ancestral domain.

As I wrote in my previous article (Philippine STAR, September 1, 2008, “Sovereignty on Trial”), the SC should rule on the validity of the MOA-AD for it is the best and only way that the Philippines can assert its sovereignty as a nation and for us to find out whether the MILF recognizes this sovereignty. 

With the SC ruling and the MILF reaction refusing to recognize it or be bound by it, the executive department now knows much better. By not recognizing the SC which is one of the main branches of our government, it is now clear that all this time the peace panel created by the executive department has been talking and trying to enter into an agreement with a wrong party that does not even recognize our government — the MILF. Hence, the more important question now is: should the government still talk with this group? The answer needs another write up in a subsequent column.  

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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