COMMENTARY: Initial Notes and Comments on the SC Decision on the MOA-AD

By Atty. Soliman M. Santos, Jr. (1)
Quezon City, 15 October 2008

These are initial notes based on the Supreme Court Public Information Office bulletin of October 14, 2008 titled “SC Declares MOA-AD Unconstitutional” and a quick scanning of the 87-page majority Decision of the same date penned by Associate Justice Conchita Carpio Morales based on an 8-7 vote declaring the MOA-AD “CONTRARY TO LAW AND THE CONSTITUTION.”(2) Those who joined her in the majority are Chief Justice Puno and Associate Justices Santiago, Carpio, Azcuna, Reyes, Quisumbing and Martinez, all of whom except the last two wrote separate concurring opinions. Those who voted to dismiss the petitions were Associate Justices Tinga, Nazario, Velasco, Nachura, De Castro, Brion and Corona, all of whom except the last wrote separate dissenting opinions. (All these separate opinions are not with me as of this writing.) Being initial notes, we limit ourselves to main points on the key thrusts of the Decision and their implications.

The aforesaid majority declaration is based on two substantive issues: [1] that the respondents GRP Peace Panel and Presidential Adviser on the Peace Process (PAPP) violating constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD; and [2] that the contents of the MOA-AD violate the Constitution and the laws. [p. 36] “MOA-AD” actually refers to the final draft of the “Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001.”

The Decision also finds “grave abuse of discretion” in respondents exceeding their authority by agreeing to Paragraph 7 under the Governance strand of the MOA-AD that “virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place” which is (as far as amendments to the Constitution are concerned) a “usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves.” [p. 87] PAPP Esperon in particular was found to have “committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated” (by EO 3, the Local Government Code, and IPRA) [p. 86].

The Decision, in dealing with the contents of the MOA-AD, summed it up this way: “The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely the associative relationship between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.” [p. 86, underscoring and bold face in the original]

The effect of this ruling would appear to be to confine future peace negotiations with the MILF, and for that matter other rebel groups, “within the box” of existing provisions of the Constitution and national laws. The reported (by the SC PIO) pronouncements of the Chief Justice and others in the majority tend to reinforce this. CJ Puno wrote that “the President as Chief Executive can negotiate peace with the MILF but it is peace that will insure that our laws are faithfully executed… without crossing the parameters of powers marked in the Constitution.” He added that “respondents’ thesis of violate now, validate later makes a burlesque of the Constitution.” Associate Justice Carpio said that in negotiating the MOA-AD, the Executive branch “committed to amend the Constitution to conform to the MOA-AD.” These statements reflect a rather conservative judicial view of the MOA-AD negotiation effort that does not augur well for similar efforts.

The SC PIO bulletin says that the Decision “enjoined the respondents and their agents from signing and executing the MOA-AD or similar agreements.” There appears to be nothing as explicit as that in the Decision but that could be the effect. The Decision notes that the MOA-AD, as “a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace” of 2001, “can be renegotiated or another one drawn up that could contain similar or significantly dissimilar [or drastic] provisions compared to the original.” [p. 84, see also p. 34] Precisely, because of this prospect of renegotiation of the MOA-AD “in another or in any form” to carry out the Ancestral Domain Aspect of the Tripoli Agreement on Peace of 2001, the Court was “minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain.” [p. 34, underscoring and bold face in the original]

Are future peace negotiations now therefore necessarily confined “within the box” of existing provisions of the Constitution and national laws? Not necessarily. Because the Decision itself provides some opening for that, albeit with due regard to non-derogation of separation of powers, particularly the matter of constituent powers in proposing and adopting amendments to the Constitution. In the discussion in pp. 71-73, there are these guidelines: (underscoring and bold face in the original)

The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. x x x

While the President does not possess constituent powers … she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers.

x x x

From the foregoing discussion, the principle may be inferred that the President – in the course of conducting peace negotiations – may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.

In other words, these guidelines do not necessarily preclude, but on the contrary inform, any subsequent effort to re-frame the GRP-MILF peace negotiations as constitutional negotiations – which they should be, in order to settle the relevant constitutional issues once and for all, otherwise the charge of unconstitutionality will always be raised when a better form of self-determination is sought for the Bangsamoro people in order to solve the Bangsamoro problem. The Decision, to its credit, does touch a bit [in p. 69] on peace-building and constitution-making by quoting from an American law journal: “Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up rules by which the new democracy will operate.”(3)

The SC PIO bulletin’s quote from the dissenting opinion of Justice Nazario is what to us is the right perspective on these negotiations: “In negotiating for peace, the Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means.”

The other major legal guideline for any subsequent effort is, of course, that on public consultation and the right to information. This brings us back to the substantive issues that were the basis for the Decision declaring the MOA-AD “contrary to law and the Constitution” as well as ruling the respondents to have “committed grave abuse of discretion.” These rulings are reconsiderable, i.e. can be the subject of a Motion for Reconsideration.

Whatever violation of constitutional and statutory provisions on public consultation and the right to information when respondents negotiated and later initialed the MOA-AD is not as sweeping or as grave as has been made to appear. The numerous documented consultation and information efforts by respondents (including in the local government units of most petitioners), even granting the consultation and information inadequacies during a process of difficult negotiation and hard bargaining, should be made clear on the record, at least for possible reconsideration of the “grave abuse of discretion” ruling. PAPP Esperon in particular is unfairly singled out to have “committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated… “ [p. 86] But he just got into the job in June 2008! – at the tail end of the MOA-AD negotiation process of three years and eight months since 2005.

As for respondents supposedly exceeding their authority by agreeing to Paragraph 7 under the Governance strand of the MOA-AD that “virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place” [p. 87], this interpretation of Paragraph 7 as a “guarantee” or “commitment” to the MILF “to amend the Constitution to conform to the MOA-AD” is highly debatable, to say the least. There is definitely no “usurpation of the constituent powers…” on the part of respondents. The respondents were all along following a recommendatory mode vis-à-vis their principal, the GRP – along the lines in the above-quoted paragraphs of the Decision. As stated in the “Supplement to the Memorandum for Intervenors Consortium of Bangsamoro Civil Society and Bangsamoro Women Solidarity Forum, Inc.” dated 28 September 2008 in support of respondents [at pp. 47-48]:

Such needed constitutional amendments, as well as needed administrative action and new legislation, in pursuit of reforms aimed at addressing the root causes of the armed conflict, are well within the authority, mandate and parameters of the GRP Peace Panel to submit by way of recommendations to the Executive as a result of long discussions and eventual consensus at the negotiating table. Thereafter, the Executive may consider these for appropriate action by itself, or coordination with and referral to the Legislature which may then take the necessary legislative and constitutional processes.

As also argued in that CBCS-BWSF Supplement [at pp. 54, 78], Paragraph 7 under the Governance strand of the MOA-AD should not be seen negatively as “making the Constitution conform to the MOA” but rather as a matter of good faith implementation of peace agreements through constitutional processes that may include any necessary amendments or revisions of the Constitution, as would be the approach too with certain international obligations.

In the context of recommendatory amendments to the Constitution to address pursue reforms to aimed at addressing the root causes of the Moro armed struggle, it is unfair to the MOA-AD negotiation effort and the whole GRP-MILF peace negotiations to prematurely shoot down a mere preliminary (to a final) peace agreement just because the Decision finds that on its face, “The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept [associative relationship] underlying them.” [p. 86] This early shooting down preempts and prejudices the whole peace process effort.

For the Decision to say that “the concept [of associative relationship] presupposes that the associated entity is a state and implies that the same is on its way to independence” [p. 87] is again highly debatable. There are states and there are states, including constituent states in a federal republic and associated states. But these said states are not sovereign independent states. There is nothing in the MOA-AD about a grant of independence to the Bangsamoro – even if they have good grounds for this (and maybe the Decision has just reinforced those grounds).

These questions of substantive constitutionality of the MOA-AD’s key provisions, as well as the numerous documented consultation and information efforts by respondents, were presented and discussed in the CBCS-BWSF Supplement [pp. 50-52, 56-79, also Annexes 3 & 4], even as these were not presented and discussed in the Memorandum of Office of the Solicitor General. Unfortunately, it appears that the Decision had not taken note of that CBCS-BWSF Supplement and its considerable set of Annexes, including especially information materials on the ancestral domain negotiations.

As we said, this is just an initial quick reading and commentary on some key thrusts in the Supreme Court Decision declaring the MOA-AD “contrary to law and the Constitution.” There is no doubt more to be done in terms of deeper and more thorough reading and study of the Decision, as well as the separate concurring and dissenting opinions, including their discussions of international law and indigenous peoples rights in relation to the peace negotiations. This is more than an academic exercise, for what really matters is its implications on the fate of the GRP-MILF peace negotiations, which is basically to say the fate of war and peace in Mindanao.

(1) Bicolano human rights lawyer, peace advocate, legal scholar; A.B. History cum laude (UP), LL.B. (UNC), LL.M. (Melb); author of 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).

(2) The lead petition of “The Province of North Cotabato, et al. vs. The GRP Peace Panel, et al.” was filed on 23 July 2008 and docketed in the Supreme Court as G.R. No. 183591.

(3) Kirsti Samuels, POST-CONFLICT PEACE-BUILDING AND CONSTITUTION-MAKING, 6 Chi. J. Int’l L. 663 (2006).