by Evangeline de Vera
Malaya
The Supreme Court, voting 8-7, yesterday declared unconstitutional the memorandum of agreement on ancestral domain that the government would have signed with the secessionist Moro National Liberation Front two months ago.
The MOA-AD, whose signing was stopped by the tribunal, proposes to create a Muslim homeland in the South which will have its own judicial system and police force.
The Muslim homeland will be governed by the Bangsamoro Juridical Entity (BJE), also proposed to be created under the MOA, which can enter into economic agreements and trade relations with other countries.
The Supreme Court said the government peace negotiating panel that crafted the MOA with the MILF violated the Constitution when it initialed the agreement that would have ceded a portion of the country’s territory to the secessionist group under the BJE.
“The statute does not grant the executive department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise,” the Court said in an 89-page decision penned by Associate Justice Conchita Carpio-Morales.
Press Secretary Jesus Dureza said Malacañang respects the decision but maintained that the issue of the constitutionality of the MOA-AD “had been mooted by its non-signing, non-consummation and withdrawal.”
Contrary to what the SC ruling said, Dureza maintained that “at no time throughout the negotiations with the MILF did the GRP guarantee any concessions that would violate the Constitution, let alone attempt to usurp the powers of Congress relative to the power to enact laws or propose amendments to the Constitution.”
The government last month told the Supreme Court Malacañang had decided not to sign agreement, in any form, because of attacks launched by MILF rebels in Central Mindanao. With that decision, the government asked the tribunal to dismiss the petitions questioning the constitutionality of the agreement.
The SC, in ruling yesterday, enjoined Executive Secretary Eduardo Ermita, the GRP panel, and presidential adviser on the peace process Hermogenes Esperon Jr. from signing and executing the MOA-AD or similar agreements.
The case was a consolidation of five petitions filed by the provinces of North Cotabato, Sultan Kudarat, and Zamboanga del Norte; Zamboanga, Iligan, and Isabela (Basilan) cities; indigenous peoples in Mindanao led by Ruy Elias Lopez; and Ernesto Maceda, Jejomar Binay, Aquilino Pimentel III, Franklin Drilon, Adel Tamano, and Sen. Manuel Roxas.
The Supreme Court directed the respondents to conduct public consultations in accordance with the right to information, with respect to any further peace negotiations with the MILF.
‘MOOT’ ISSUE
Eight of the justices ruled that the non-signing of the MOA-AD and the eventual dissolution of the GRP peace panel did not moot the petitions, saying that the signing of the pact, scheduled August 5, did not push through due to the Court’s issuance of a temporary restraining order.
Concurring in the decision were Chief Justice Reynato Puno, and Associate Justices Consuelo Yñares-Santiago, Antonio Carpio, Adolfo Azcuna, Ruben Reyes, Leonardo Quisumbing and Ma. Alicia Austria-Martinez.
Dissenting on the ground that the issue had been mooted were Associate Justices Dante Tinga, Renato Corona, Minita Chico-Nazario, Presbiterio Velasco Jr., Antonio Eduardo Nachura, Teresita Leonardo-de Castro, and Arturo Brion.
EXCEPTIONS
The Court denied the respondents’ motion to dismiss the petitions on the ground that the non-signing of the MOA-AD and the eventual dissolution of the GRP panel mooted the present petitions.
It said the petitions provided an exception to the “moot and academic” principle in view of “the grave violation of the Constitution involved; the exceptional character of the situation and paramount public interest; the need to formulate controlling principles to guide the bench, the bar and the public; and the fact that the case is capable of repetition yet evading review.”
The Court said Esperon committed grave abuse of discretion when he failed to carry out the consultation process, as mandated by law, in areas that would be directly affected by the creation of the Muslim homeland which will include at least 700 barangays outside the Autonomous Region in Muslim Mindanao.
Lack of consultations was among issues raised by the petitioners which include North Cotabato and Davao and Iligan cities.
‘DESPOTIC EXERCISE’
The SC said the invocation of executive privilege as a defense to the general right to information of was “untenable.”
“The various explicit legal provisions fly in the fact of executive secrecy… The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of a positive duty and a virtual refusal to perform the duty enjoined,” the Court said.
It further said the agreement cannot be reconciled with the Constitution and the laws, given that the “associative relationship envisioned 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.”
CURING THE DEFECT
The tribunal said the inclusion of provisions in the MOA-AD establishing an “associative relationship” between the BJE and the central government is, itself, a violation of the memorandum of instruction from the President dated March 1, 2001, addressed to the GRP panel.
The SC explained that while there is a clause in the MOA-AD stating that provisions which are inconsistent with the Constitution will not be effective until the Charter is amended, “the same does not cure its defect.”
The proposed homeland requires Charter amendments.
The Court said neither the GRP panel nor the President is authorized to make such a guarantee, as such power is vested in Congress, a constitutional convention or the people themselves through the process of initiative.
‘FATALLY DEFECTIVE’
The high court further said that while the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, the respondents’ act of guaranteeing amendments is by itself, is already a constitutional violation that renders the agreement “fatally defective.”
Moreover, the Court said the proposed BJE under the MOA-AD “runs counter to the national sovereignty and territorial integrity of the Republic.”
“The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state,” said the SC.
‘VIOLATE NOW…’
In his separate opinion, Azcuna said that had the MOA-AD been signed as planned, it would have provided a basis for a claim in an international court that the Philippines was bound by its terms at the very least as a unilateral declaration made before representatives of the international community with vital interests in the region.
Puno, in a separate concurring opinion, said the President as Chief Executive can negotiate peace with the MILF but “it is peace that will insure that our laws are faithfully executed.”
He said that during the whole process, the government peace negotiators “conducted themselves free from the strictures of the Constitution,” adding that respondents’ argument of “violate now, validate later’ makes a burlesque of the Constitution.”
In his dissent, Tinga said the fact that the Philippine government has not yet consented to be bound by the MOA-AD is indubitable, as “the successful outcome of negotiation of international agreements is the adoption and authentication of the agreed text.”
“The initialing of the agreement reflects only the affirmation by the negotiating agents that the text of the prospective agreement is authentic,” he said.
He noted that while the MOA-AD was incongruous to the Constitution, “nothing prevents Congress from amending or reenacting an Organic Act providing for an Autonomous Region for Muslim Mindanao (ARMM).” – With Jocelyn Montemayor
Inquirer story
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Wow, all is not lost, for this country.
Thanks God, may lumalaban.
Dapat lang! Anything the dorobo and her minions sign should in fact be considered illegal and should be protested by Filipinos, who should know by now that they should not have allowed a criminal to sit at the palace by the murky river in the first place. Buti na lang may isa palang hindi appointee noong kriminal.
Pito pa ring magistrates ang OK sa MOA-AD???!!! What could be the exact positions of these 7 stooges.
Itong pitong ugok na oks sa MOA, ilan sa kanila ang Bar Topnotchers? Kung sino man ang mga gago at gagang yan palagay ko cheater sila kaya sila nag-top. Mga gago at gaga ini-isip lang nila ay yong kapakanan yang Pangulo nilang mandaraya at magnanakaw. Mga hypocrite.
Former Speaker Jose de Venecia will have to endorse the new impeachment complaint filed by his son Joey and civil society groups against President Arroyo if he is serious in convincing opposition congressmen to support it, House minority leader Ronaldo Zamora said yesterday.
“If the father can’t be convinced about the legitimacy of the complaint filed by his son, how can we in the minority go around and convince others to join us? Obviously, it’s a setback,” he said.
…JDV not only did not fulfill his promise to testify at the Senate on the ZTE deal, he refuses to endorse the impeachment complaint!
Iba naman ito … “PNP exec held in Russia over P7.5M cash” ayon sa Inquirer.
Kung unconstitional ang MOA-AD, dapat ay ikalaboso si Gloria at Asspweron dahil sila ang promotor nito. Isama na rin lahat ang mga opisyal ni Gloria na sabit dito. Ganun na lang ba matapos na manggulo si Gloria at ang daming namatay sa Mindanao gera dala ng kanyang MOA-AD?
Correct. The SC decision should not stop there. The guilty parties who created such stupid agreement must be punished. In order to hide its embarrassment, Malacanang argues that the agreement wasn’t pushed through anyway.
Any Filipino has the right to be mad at any sector (including the SC) of the govt when he believes his rights are crossed. As Filipinos, the MILF have their duty to fight the abusive govt they believe to be such. For all we know, they are only spearheading the movement to remove the administration. Their bravery is commendable. They need more support from the opposed people. Callous words only not necessary, action it is.
The result of the voting all but confirms that while we still have an uneasy majority of right-thinking justices in the SC, the fragile status of justice in this country is hinged upon who this mini-dictator appoints next as one among the 8 retires soon. Or a single crossing-over to the other side of the fence could also mean the last nail in the coffin of one of the few remaining institutions not yet fully under the diabolic control of the pResident Evil.
I just hope THAT won’t happen.
North Cotabato Vice Governor Manny Piñol:
Statement of Sen. Francis Pangilinan:
Reaction of Sen. Mar Roxas:
Hang those paken traitors!!!
Korek ka dyan, Sulbatz.
Ruben Reyes and Justice Ma. Alicia Austria-Martinez both retire on December 18, 2008. Hihinga lang ako nang maluwag kapag naubos na ang 15 araw para sa motion for recon.
Kapag nagbagal si CJ Puno, tulad ng sa NBN (they tarried until Justice Sandoval Gutierrez retired), magkakaroon ng bagong Arturo Brion to spoil the vote.
These people conduct these transactions in aircondtioned offices, hotels, enjoy lavish comfort and expensive food while hobnobbing with each other – meanwhile people are getting killed needlessly as a result of irresponsibility and utter disregard.
Yes, I agree, hang these traitors! Did the detained officers/soldiers do anything worst than these people? Where is justice here?
Our justice system is not yet totally independent from the appointing power. There are still those justices who doesn’t understand what the word JUSTICE means. Uso din pala brasohan sa loob ng Korte Suprema, not much difference with the House of Representa-THIEVES. Grabe talaga!!!
See the link below from abs-cbnnews.com
http://www.abs-cbnnews.com/nation/10/14/08/despite-moa-loss-palace-still-controls-sc
@juggernaut : “Yes, I agree, hang these traitors! Did the detained officers/soldiers do anything worst than these people? Where is justice here?”
Not fair if you just hang them. Ang bilis naman. For me, the best way to get back at those scoundrels is:
1. kompiskahin ang lahat ng mga pera at ari-arian nila, wala dapat matira ni kusing.
2. yes agree, ako sa hang pero hang ng naka patiwarik. hanggang lumuwa ang kanilang mga mata. hang them upside down until they are so used to it thatthey’d think that their bottoms are their heads and their heads are their butts…..
3. …and after that, put them inside the death chamber but no poison or lethal injection, no lights and minimal ventilation. and it should be room full of human and animal dung.
thats where they belong, and thats what they are. a bunch of SH*T heads.
With the GRP panel already dissolved, who will represent the people once fresh negotiations begin, Chavit?
One can make out a case for treason.
Art. 114. Treason. — Any person who, owing allegiance to (the United States or) the Government of the Philippine Islands, not being a foreigner, levies war against them or adheres to their enemies, giving them aid or comfort within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall pay a fine not to exceed P20,000 pesos.
The article says any person who levies war. So I disagree with Justice Cruz’s definition, that this requires the classic country to country confrontation to constitute war. The MILF levied and is still levying war on the Philippines. Kaya nga may ceasefire. Esperon et al provided aid and comfort.
Esperon may say he was only following orders, but the Supreme Court said:
“The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined,” the Court said.”
Since his acts run contrary to his authority, his acts can be considered as not in connection with his government employment. So hindi hawak ni Gutierrez yan (Ombudsman).
The acts (negotiation a.k.a. sellout) were done in either Lawrence Cruz’s, or Piñol’s, or Climaco’s territory. Maraming namatay. So the fiscals of those provinces have jurisdiction, not Gutierrez. Treason is a non-bailable offense. So dakipin si Esperon, ipabantay sa Ilaga.
Off topic:
Ellen,
Do you have info regarding the PNP generals who brought their wives to Russia to attend a conference? The generals were caught bringing in a large amount of money in Euros.
Wanna know what the conference was about? Is it true that it was about, of all things, Money Laundering!
Tell that to the Marines Mr. Pulis na Panis!
Forgetfulness’ caused trouble for ex-PNP official with big cash in Russia
http://www.abs-cbnnews.com/nation/10/15/08/pnp-officials-stranded-russia-have-expired-visas
Tongue, I’m told the wife of PNP Chief Verzosa was with the delegation which was strange because the husband who was the official was not there.
Mukha nga something is very fishy here.
Very ‘strange’ indeed.
I’ve posted the story so we can can discussion on that in a separate thread.
We have to wait until the Decision becomes final. The ruling shows that the Palace controls a solid block of 7 votes led by Justice Corona. These justices so far have never voted against Malacanang. In this case, Justice Quisumbing and Ruben Reyes (who voted for Neri in the executive privilege case) surprisingly voted against Malacanang. God help us once GMA appoints 7 new SC justices next year. The problem is CJ Puno’s weak leadership. He is unable to convince his colleagues to exercise independent judgment whenever there is a controversial case being heard. As CJ, he is supposed to be primus inter pares. So many of the independent minded justices will be retiring next year.
The inside story of the voting can be found at this link:
http://www.abs-cbnnews.com/nation/10/14/08/despite-moa-loss-palace-still-controls-sc
Mar Roxas: This decision teaches the lesson that irresponsible executive leadership cannot prevail indefinitely in the presence of a vigilant judiciary.
__
Teka muna, Mar. Mali ka diyan. Ang media at ordinaryong Pinoy ang vigilant, hindi ang judiciary.
Kundi sa media at kay Juan, Pedro at Petra at sa amin dito sa Ellenville na halos walang tulugan para magdakdak sa isyu na yan ay hindi ia-abort ni Gloria ang MOA-AD at hindi mapupunta sa judiciary/Supreme court. Itong mga senadores ay dessert na lang ang pinagtitiyagaan!
Dami pang palusot. Kulang na lang sabihin ng ungas na suspect ng money laundering na kasalanan ni Taning kung bakit may dala siyang pagkalaki-laking Euros! Grabe talaga ang kawatan sa administrasyon ng isang kriminal! Yuck!