SC ruling on MOA-AD and the prospects for ‘legalizing’ peace

THE Supreme Court voted 8-7 today to declare as unconstitutional the scuttled memorandum of agreement on ancestral domain (MOA-AD) between the Arroyo government and the Moro Islamic Liberation Front (MILF).

The MOA-AD, the third agreement to have come out of the GRP-MILF peace negotiations, was supposed to have been signed by the chairs of the government and MILF peace panels last August 5 in Kuala Lumpur, Malaysia. But the high tribunal issued a temporary restraining order (TRO) a day ahead of the signing, granting the petition filed by critics led by North Cotabato Vice Governor Emmanuel Piñol.

Though the government eventually abandoned the MOA, majority of the SC justices (Chief Justice Reynato Puno, Associate Justices Consuelo Yñares-Santiago, Antonio Carpio, Adolfo Azcuna, Ruben Reryes, Leonardo Quisumbing, Alicia Austria-Martinez, and Conchita Caprio-Morales as ponente), insisted on issuing a ruling on its constitutionality. The justices scored the lack of public consultations on the agreement as required by law, even pointing out the “whimsical, capricious, oppressive, arbitrary, and despotic” manner by which it was designed and crafted. They also noted how the government panel usurps the powers of Congress by guaranteeing in the MOA-AD the required amendments to the 1987 Constitution.

But while senators and other critics welcomed the SC decision, Atty. Marvic Leonen, dean of the College of Law of the University of the Philippines, thought it was a “recipe for disaster.”

In his talk at the PCIJ-Newsbreak seminar on “Reporting on Conflict and Peace: The Story of Mindanao” two weeks ago in Zamboanga City, Leonen somehow anticipated how the SC would rule on the ancestral domain agreement, saying that the “worst thing the Supreme Court can do is for it to say that in all peace negotiations, the Constitution is the framework, and all of it.” (see also “Will jurisprudence finally give peace a chance?“)

To negotiate only to the extent that the Constitution allows, which will require amending it first before the government can offer certain terms, Leonen said, is “scary.”

“How can a minority ever change the Constitution?” he asked. “And when ever in our history did we take into consideration ethnicity or the interest of an ethnic group, the Moro peoples, when we crafted the Constitution?”

Listen to Dean Leonen’s talk on The Law and BJE: The Prospects for ‘Legalizing’ Peace:

• Part 1
  Length: 00:32:45
  Language: English and Filipino
  File size: 29.9 MB

• Part 2
  Length: 00:30:22
  Language: English and Filipino
  File size: 27.8 MB

Nonetheless, it can be argued, Leonen said, that what the MOA-AD stipulates — among them the creation of the Bangsamoro Juridical Entity (BJE) out of an expanded Autonomous Region in Muslim Mindanao (ARMM) that would have full authority to develop and exploit natural resources within its delineated territory — can be done within the context of the 1987 Constitution.

An autonomous region, he said, is allowed within the framework of the Constitution, adding that national sovereignty and territorial integrity are respected in the MOA as evidenced by the absence of provisions for a separate flag, a 9th ray in the Philippine flag, or internationalizing the BJE’s personality except through “best efforts.”

Leonen also pointed out that there is recognition in the MOA of a central government, whose relationship to the BJE shall be associative, characterized by shared authority and responsibility within a structure of governance based on executive, legislative, judicial and administrative institutions. These, he said, are precisely what the Constitution requires.

Moreover, Leonen said it is within the power of the President as commander-in-chief (as stated in Article VII of the Constitution) to politically agree to create the process and institutions mentioned in the MOA-AD. Given such commander-in-chief powers, the President should have a lot of leeway in waging peace as in waging war, he said.