I have blogged a number of times here in FV criticizing the decision of the Supreme Court on the MoA-AD case arguing in the main that the development of the law on separation of powers could be heading further in the wrong direction as a consequence of the decision. Among others, I raised the following concerns:

1) The SC has breached its duty to exercise judicial self-restraint on a highly delicate matter that involves the exercise of executive prerogative. I hold that the President’s prerogative as commander in chief to negotiate for peace in Mindanao or to continue waging war is beyond the purview of judicial review. By failing or refusing to exercise self-restraint, the SC has once again consciously enhanced its judicial powers (as in those cases affecting the oversight power of Congress) at the expense of the powers of the Executive, a co-equal department in our tripartite system of government.

My argument on this point runs like this: If we grant that the SC can prevent a peace negotiation via a temporary or permanent injunction to forestall a perceived dismemberment of the national territory, doesn’t it follow that, in case of executive dillydallying, the Court can also issue an order or enjoin to the commander in chief to recover a lost ground or territory, inflict punitive action or conduct an all-out war to win peace?

2) The main contention in the SC decision is wrapped in the majority’s interpretation of the MoA-AD to the effect that the government peace panel “virtually guaranteed” in the agreement that the present constitutional setup will be amended to validate provisions in the MoA-AD not heretofore in conformity with the Constitution.

My argument on this second point is: The MoA-AD still contemplates of a “comprehensive peace pact” yet to be forged and to be adopted in accordance with the processes (the amending process in particular) under the existing legal framework, i.e., the Constitution, essentially. The MoA-AD is thus akin to the joint Senate resolution proposing the adoption of federalism, obviously a political arrangement “brazenly” not in accord with the present unitary system.

3) The case was mooted when the President unilaterally has gotten rid of the MoA-AD.

My argument on this point is: What would have happened had the SC ruled that the MoA-AD is constitutional? Won’t such a decision be anything but academic since the MoA-AD is already scrapped and the President as commander in chief might have in fact already decided to finish the fight until the rebellious forces are totally suppressed?

The foregoing concerns notwithstanding, should I still support the Complaint-in-Intervention filed by our colleague mlq3 et al in the pending impeachment proceeding against President Arroyo?

I certainly will if there is a “probable cause” as to the allegations contained in the Complaint that the President “chose to renegotiate with the MILF with the main objective of remedying her plummeting trust, approval, and popularity ratings” or only for “purely partisan, political, objectives such an agreement could help achieve, namely, amending the Constitution in furtherance of her political needs and those of her allies” or otherwise “undertaken with purely tactical political goals in mind.”

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