PEACE advocate and legal scholar Soliman Santos Jr. contributes this piece in anticipation of oral arguments to be heard by the Supreme Court on August 15 regarding the petitions filed by those opposing the memorandum of agreement on ancestral domain (MOA-AD) between the government and the Moro Islamic Liberation Front (MILF). The Court issued a temporary restraining order (TRO) last week to stop the two sides from signing the agreement that seeks to establish a Bangsamoro homeland to be governed by a new juridical entity vested with expanded political and economic powers.

Soliman is hoping that the SC will not put off its ruling on the matter the way it did with the cases filed against certain agreements forged during the GRP-Moro National Liberation Front (MNLF) peace negotiations in 1996. Jurisprudence, he says, is given a rare opportunity to allow the peace process a chance to reach a negotiated political settlement of the decades-old armed conflict.

A chance for jurisprudence on giving peace a chance

THE new cases in the Supreme Court (SC) resulting in the issuance of a Temporary Restraining Order (TRO) against the about-to-be-signed Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Memorandum of Agreement on Ancestral Domain (MOA-AD) is an opportunity for the first-ever Philippine jurisprudence on the matter of peace processes, particularly peace negotiations and agreements between the government and a major rebel group. It is a chance to have Philippine jurisprudence (i.e. a Supreme Court ruling) which hopefully speaks of giving such peace processes a chance to reach a negotiated political settlement of the armed conflict.

Actually, there was already a chance for this before the turn of the millennium, in three cases filed in the SC against certain agreements in the GRP-Moro National Liberation Front (MNLF) peace negotiations in 1996. But these cases were, for some reason, never decided, despite (over-)ripeness for it, until these were dismissed on a minor technicality in 2005.

These were the cases filed by lawyer Ramon A. Gonzales against the GRP-MNLF “Davao Points of Consensus” of 23 June 1996 (G.R. No. 125413); by Maria Clara L. Lobregat, et al. against the GRP-MNLF Peace Agreement of 2 September 1996 and Executive Order No. 371 of 2 October 1006 (G.R. No. 126449); and by the BATAS group of lawyers against the appointment of Autonomous Region in Muslim Mindanao (ARMM) Governor Nur Misuari as Chairman of the Southern Philippines Council for Peace and Development (SPCPD) (G.R. No. 126628).

Those undecided cases in 1996 involved similar issues as the new TRO cases. All separately prayed for a TRO against the questioned agreements and/or issuances but, if memory serves me right, no TRO was ever granted.

In this light, the recent TRO against an interim agreement of an unfinished and still ongoing peace process is remarkable, to say the least, if not extraordinary.

Remarkable and extraordinary as well in those 1996 cases was their non-decision for nine years despite much earlier ripeness and then sudden dismissal on a small technicality in 2005. The technicality was the failure of counsel for petitioners in the second case to more seasonably notify the SC of the death of the lead petitioner Maria Clara L. Lobregat. It is not coincidental that her son and successor as Zamboanga City Mayor, Celso L. Lobregat, is one of the petitioners in the second of the new TRO cases. It is not likely though that judicial history will repeat itself with a non-decision. This time it seems a ruling and jurisprudence cannot (or should not) be put off.

In one sense though, the non-decision and, for that matter, the earlier non-TRO in those 1996 cases were tantamount to a de facto “decision” to leave things as they were, and therefore favored what was not enjoined or struck down, namely: the “Davao Points of Consensus,” the GRP-MNLF (Final) Peace Agreement, EO 371, and the appointment of ARMM Governor Misuari as SPCPD Chairman. These all therefore remained valid, as they were presumed to be, and operational, starting with the finality of the Peace Agreement. But then there was no jurisprudence to guide the future (which we are in now).

The opportunity that was lost with the dismissal on technicality of those 1996 cases was for a SC ruling and jurisprudence on three related but different factual situations representing the forward progression of a peace process: (1) interim agreement/s; (2) final peace agreement (FPA); and (3) executive issuance/s to implement the FPA. The last progression here might also include legislative measures and/or constitutional amendments to implement the FPA.

The new TRO cases deal only with the first factual situation or progression — interim agreement, which is what the MOA-AD is. It is not yet the second factual situation or progression — FPA, which is what the envisioned GRP-MILF Comprehensive Compact would be.

These factual situations or progressions have a bearing on what is ripe for judicial processes and adjudication, particularly as regards constitutional questions. We venture to say that interim agreements might be subject to constitutional questions of process but not yet constitutional questions of substance, since their substance is not of a final nature. It is the final peace agreement that might be subjected to constitutional questions of substance, and of course also of process.

This dichotomy might be clearer by looking at some analogies, also involving some of the above-mentioned factual situations or progressions: draft EOs and issued EOs; bills and laws; draft court decisions and promulgated court decisions. Draft EOs, bills and draft court decisions have never, by practice, been subjected to constitutional questions of substance and even of process. Firstly, because they are not yet final. Secondly, because they are just part of a process which must be respected and given a chance to complete itself.

Now, could these not be said too of interim peace agreements like the MOA-AD?

On one hand, the MOA-AD graduates from a draft to a final document when it is signed (not just initialed). On the other hand, it is not yet the FPA which consolidates and finalizes the substance of the negotiated political settlement. The whole process, standard rules, and peculiar practices of peace negotiations must be respected in the same way that we must respect the whole process, standard rules, and peculiar practices of international treaty negotiations and other executive functions, of the legislative mill, of judicial decision-making, and even of the planning and conduct of military operations.

All these processes deal with matters of public concern but have, in varying degrees, their respective aspects of public information, participation and consultation — perhaps more with the political branches of government than with the judiciary and the military because of the nature of the work involved. Each has their specific characteristics, including rules of confidentiality. For example, bills are accessible by the public but draft court decisions are (or should) not, not even by the parties to the case.

In the case of peace negotiations, the line for public access should be probably drawn at signed agreements and statements, even interim ones. Even the constitutional rights of the people to information, to participation in decision-making and consultation in the peace negotiations are necessarily limited by the inherent sensitive character of such negotiations. Philippine Daily Inquirer analyst Amando Doronila said it well, during the height of the furor after the leakage to and publication in his newspaper of the GRP-MNLF “Davao Points of Consensus” in July 1996:

“In a negotiation, it is a recipe for chaos to open talks to the public and refer each point agreed at the end of the day for public reaction. Negotiation is never done that way. If you allow the public to breathe down your neck at the conference table and to snoop into your every point, you will never get anywhere. Mature democracies debate settlements after a framework has been completed — not before. So it is nonsense to say that transparency includes giving the public access to the negotiating table.” (PDI, 7/22/96, p. 9)

Giving the peace negotiations a chance means respecting its inherent character as well as purpose. Of course, the peace negotiators or the parties they represent must somehow find the right balance and mechanisms between confidentiality and transparency, between closed-door negotiations and public consultations, and for people’s participation which both effective and reasonable (this is the key word). This qualification “reasonable” is found in two constitutional provisions which deal with “full public disclosure of all its transactions involving public interest” (Art. II, Sec. 28) and with “participation at all levels of social, political, and economic decision-making” (Art. XIII, Sec. 16). These are all relevant to constitutional questions of process (not substance) regarding the interim agreement which is the MOA-AD.

Unfortunately, there are no specific constitutional provisions on peace processes and negotiations that may guide us. However, one can glean the spirit of giving peace (and these processes) a chance from some constitutional provisions on peace:

  • “…a regime of truth, justice, freedom, love, equality and peace…” (Preamble)
  • “The Philippines renounces war as an instrument of national policy… and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.” (Article II, Section 2)
  • “The maintenance of peace and order… are essential for the enjoyment by all the people of the blessings of democracy.” (Article II, Section 5)

While Article II, Section 2 is traditionally seen in the context of international relations, there is ground to argue that the renunciation of war as an instrument of national policy and the policy of peace applies or should apply domestically, including “with all nations” inside the Philippines like the Bangsamoro (Moro nation).

In any case, the new TRO cases are another chance for the SC to boldly fill in the “interstices” among and within those general constitutional provisions on peace in order to break new jurisprudential ground in favor of respecting the inherent character of peace processes/negotiations and giving them a chance to achieve their purpose contributory to “a regime of truth, justice, freedom, love, equality and peace.”

Atty. Soliman Santos Jr. graduated cum laude from the University of the Philippines with a degree in A.B. History. He obtained his law degree from the University of Nueva Caceres. He has a Master of Laws from the University of Melbourne in Australia. He is author of the following books: The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).

4 Responses to Will jurisprudence finally give peace a chance?



August 11th, 2008 at 12:48 am

As I always say, I like Prof. Perfecto Fernandez when it comes to analyzing constitutional realities.

What are the realities here?

The issue is political and therefore beyond the province of the court. The right of the executive department to enter into a “peace negotiation” with anybody is not the business of the court.

But if the “peace negotiation” touches on giving up “territorial sovereignty” it becomes justiciable.

Here is the catch, the MOA is only a working guideline on how the two parties will agree on the finer points of “parceling out” the Philippine Archipelago, no parceling out has been done yet.

So the issue is ripeness. Are the petitioners entitled to a relief for an “expected injury?” Or will they be injured if the country is parceled out?

Any lawyer will tell you No. You are not entitled to a relief for a “future injury” nor are you a foreseeable plaintiff in the eyes of the law.

But what are the constitutional realities?

If the government position is that it should have never agreed in the “peace process” in the first place, expect the Court to rule on the issue as a justiciable issue and rule that the intended “peace plan” is unconstitutional.

But if the government desires to have a “lasting peace” with the MNLF/MILF/ARRM, expect the court to throw the petition as “non-justificiable” or even on issue of ripeness.

So it boils down to the issue of what the government really wants ! ! ! So here is what the government or GMA wants. If enough politicians will back her up in the “peace process”, the government will go for it, but if not, she will go against it. The SC will always take GMA’s side because whatever side it is, the SC can always argue both sides anyway.

Public opinion really does not matter in Philippine politics. It is always political convenience that matters.

But from my standpoint, where did anyone get the idea that MILF desires peace? It wants power and the subjugation of people who do not think like them. The moment it has its own territory in its clutch and declares a State of Mindanao in the future, expect it to drive away the Christians from their so-called “ancestral lands”. This is political reality pure and simple.


Manuel L. Quezon III

August 11th, 2008 at 4:29 pm

[…] in it. Lawyers Fr. Joaquin Bernas, SJ (see The controversial GRP-MILF MOA) and Soliman Santos (see Will jurisprudence finally give peace a chance? in the PCIJ blog). seem inclined to argue that the Supreme Court actually has nothing to rule on, […]


Current » The perils of partition

August 11th, 2008 at 4:31 pm

[…] in it. Lawyers Fr. Joaquin Bernas, SJ (see The controversial GRP-MILF MOA) and Soliman Santos (see Will jurisprudence finally give peace a chance? in the PCIJ blog). seem inclined to argue that the Supreme Court actually has nothing to rule on, […]



August 11th, 2008 at 5:30 pm

i don’t know if jurisprudence will bring peace but no matter what, i know all of us are wishing for it because decades have passed yet the situation in mindanao remains. it’s sad. but now i want to share something that made me feel happy somehow. i’m glad that young thoughts can be heard because of these individuals. here it goes:

Young Generation of Politicians Barnstorms Schools, Connects with the “Internet Nation”

A multipartisan political group called “Young Turks” led by Genuine Opposition Spokesperson and Pamantasan Lungsod ng Maynila President Atty. Adel Tamano has started to go the rounds of colleges and universities all over the country. Tamano, along with other young political personalities Nacionalista Party spokesperson and former congressman Gilbert Remulla, English Professor Danton Remoto, Congressman Erin Tanada, and San Juan mayor JV Ejercito are doing the rounds of campuses advocating for youth involvement in governance.

The kick off started at Silliman University in Dumaguete City Last July 10-11, 2008. Tamano described the event. “The bright students of Silliman University asked questions and we tried to answer them with substance and with style, with wit and cheer and laughter intact. It is because their questions seemed to deal with lack of hope, of being betrayed by their leaders, of abandonment. I hope we kept the spark plug of hope alive. We spoke in a chapel, a presentation room for business students, and the great church — all in one day. We hope the Sillimanians had a grand time, the way we did too, in our first campus tour.”

Eero Brillantes, CEO of Mindbullet Marketing and Public Relations, and maintains the young turk’s blog says that the blog has become hyperactive after the Silliman activity. Based on site metering, he noted interest in what the group has to say. “The blog has just recently been put up. Yet it has already been visited almost 10,000 times. It is currently ranked number 13 for politics and government by Its just one notch lower to the “Mar Roxas for President 2010 blog which is at number 12. The blog definitely has momentum. With the campus tour catching fire, the blog is poised to be a prominent fixture in new politics for the country. The Young Turks and the Internet Nation has become properly introduced”.

For his part Remoto was upbeat about the launch and how the internet was able to disseminate the event exponentially. “Skycable showed the complete proceedings that night of July 10, and we also had coverage from two radio stations, two newspapers and the Sillimanian college paper as well as its website. Not to mention the many blogs of the bagets from Silliman, which are now being read and re-sent and re-read all over the borderless world of cyberspace. ”

Congressman Tanada, emphasized the need for dialogue between the young batch of political leaders and the youth. He said that it is important for the youth not to loose hope and for them to assert their rights. Remulla asserted that there is still hope and it resides in the youth and the young generation should not be afraid to stand for what they believe in.

On August 26, 2008, the Young Turks will visit the University of the Philippines National College of Public Administration and Governance. This will be followed by a tour to University of the Philippines at Los Baños in September. xxx

Press Release: August 11,2008
For more info: Eero Brillantes, 09276702831,