Will jurisprudence finally give peace a chance?

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.”

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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).

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