SC defiance in landmark MoA is impeachable offense
September 2nd, 2008 by Abe N. MargalloPhilippine Daily Inquirer reported Aug. 30, 2008 the following:
Press Secretary Jesus Dureza said the government now intended to “refocus” the peace talks with the Moro Islamic Liberation Front (MILF) on the issues of “disarmament, demobilization and rehabilitation” after it set aside the contentious proposed Memorandum of Agreement (MOA) on ancestral domain with the secessionist Muslim group.
Dureza confirmed Solicitor General Agnes Devanadera’s statements at the Supreme Court yesterday that Malacañang would no longer sign the MOA whatever the high court decides on the petitions against the MOA.
He said the government was setting aside the MOA and that “no matter what the Supreme Court will ultimately decide, the government will not sign the MOA.”
It should be recalled that the Memorandum of Agreement on Ancestral Domain (MoA-AD) is the output of thousands of man-hours expended in a long series of tedious negotiations between the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) which began as far back as 2001.
The last draft of the MoA-AD was then subjected to more than three months of “due diligence review” by legal experts on the part of GRP to ascertain whether or not the agreement would meet any constitutional challenge.
Finally, on July 27, 2008, the MoA-AD was officially initialed by the GRP and the MILF. Secretary Rodolfo Garcia, GRP chief peace negotiator, and Secretary Hermogenes Esperon of the Office of the Presidential Assistant on the Peace Process initialed the MoA-AD for the government. Mohagher Iqbal initialed the document for the MILF, and Datuk Othman bin Abdulrazak, the designated chief peace facilitator, initialed it for the Malaysian government.
The day after the initialing of the MoA-AD, or during SONA 2008 (delivered July 28, 2008) President Gloria Macapagal-Arroyo proudly announced:
“A comprehensive peace has eluded us for half a century. But last night, differences on the tough issue of ancestral domain were resolved. Yes, there are political dynamics among the people of Mindanao. Let us sort them out with the utmost sobriety, patience and restraint. I ask Congress to act on the legislative and political reforms that will lead to a just and lasting peace during our term of office.” (Italics mine)
The formal signing ceremony of the MoA-AD was scheduled a week after, or on August 5, 2008, in Putrajaya, Malaysia. Whereupon, Philippine Foreign Secretary Alberto Romulo, the foreign minister of Malaysia, the ambassadors of the United States, Australia and Japan to the Philippines as well as the OIC ambassador to the Philippines arrived in Malaysia to witness the official signing of the “landmark deal.” Mindanao peace advocates and members of the civil society groups were also at hand to witness the signing ceremonies.
Then, the spoiler came.
A day before the signing ceremony, or on August 4, 2008, the Philippine Supreme Court, upon the petition of some Mindanao politicians (North Cotabato Vice-Governor Emmanuel Piñol and Zambaonga City Mayor Celso Lobregat), issued an order based obviously on very limited information restraining (temporarily) the GRP representatives from participating in the ceremony.
I have argued that it is “blatantly irregular for the judiciary (the supposedly apolitical, publicly unaccountable and the least informed of the three branches of the government) to step in at the crucial negotiation stage for the Mindanao peace settlement or, in the guise of judicial review, actively participate in such a decidedly political matter by constraining the President, temporarily or permanently”; moreover, I have advanced that “even the senate (the president’s treaty-making partner under the Constitution) cannot meddle with this (negotiation) aspect of treaty making or of forging executive agreement in the same way that the court cannot interfere with the decision of congress or the senate to introduce ultra constitutional resolution [e.g., Senator Pimentel’s proposal for federalism] it deems appropriate to institute structural or systemic change in governance.”
The basis of the presidential power to conclude peace (or to wage war) is her commander- in-chief powers under the Constitution which demand great deference from the courts. By precipitously issuing a TRO against the executive in the matter of negotiating to conclude the MoA-AD, the Supreme Court has acted out of bounds and trifled unconstitutionally with a prerogative that is exclusively presidential.
Today, despite President Arroyo’s announcement during her SONA 2008 that “differences on the tough issue of ancestral domain were resolved” the night before her SONA address (when the MoA-AD was initiated by the parties), Chief Presidential Legal Counsel Sergio Apostol is daring to claim that the GRP peace panel was only “given authority to negotiate but not full authority to sign” and therefore indicating that the MoA-AD is invalid the government panel having “had no authority to sign.”
The bold presidential flip-flopping notwithstanding, the newly announced intention of the President to set aside the MoA-AD pertains to no less than another executive prerogative the exercise of which the Supreme Court can only interfere with on unconstitutional authority.
In short, even if the Supreme Court decides, in the cases before it, that the MoA-AD is constitutional, it cannot by our Rule of Law command the President or her alter egos to proceed with the agreement should she now choose to explore other alternatives or simply decide in a different way, e.g., flip-flop completely to pursue a new policy of “disarmament, demobilization and rehabilitation” or otherwise renege unilaterally on the government’s commitments, putting at naught all the time, efforts and emotions invested by both parties in the MoA-AD.
Again, no other possible conclusion can legally and constitutionally be had than for the judiciary to respect the presidential prerogative because the decision to resume hostilities or conclude peace with MILF belongs to the President alone and none other. Hence, any attempt by the Supreme Court to constrain this presidential prerogative either by TRO or by permanent injunction constitutes arrogation of unconstitutional powers that may amount to impeachable offense on the part of the individual justices.
On the other hand, the timidity of the Solicitor General to anchor the government’s plea on executive prerogative ground, while preferring to cling on to the claim that the issue of the constitutionality of the MoA-AD has been mooted by the presidential turnabout, is either plain ineptness or just another unfortunate subterfuge that boggles the mind.
Now, that the MoA-AD is nowhere near a “treaty of cession” is clear from its text. Expressly, the agreement stipulates that the Government is yet “to conduct and deliver, using all possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas” encompassed in the proposed ancestral territory of Bangsamoro. And instead of the fear of dismemberment that has been insidiously instilled and bruited with reckless abandon in various fora, the MoA-AD clearly recognizes the sovereignty of the “Central Government” where the relationship between the government and the Bangsamoro Juridical Entity as proposed therein is “associative characterized by shared authority and responsibility” but nonetheless still subject to a prospective “Comprehensive Compact specifying the relationship.”
The initialed MoA-AD may be a “done deal” as a framework document but it remains nothing more than an exchange of promise that is yet unenforceable. The agreement reached is however imbued with great political significance especially in terms of putting a final closure to the Mindanao conflict. The lesson from Dred Scott makes it incumbent upon the Supreme Court at this stage to stay clear from such a crucial juncture for peace.
September 2, 2008 at 8:07 am
“nothing more than an exchange of promise that is yet unenforceable.”
Very nice definition of the term “ultra vires” when the government makes promises it knows it cannot keep, right in front of the international community. Ok it’s only been initialed, but even pro-MOA AD legal experts admit, the MILF could certainly go to the ICJ for satisfaction had it been signed.
Indeed even greater violence would’ve certainly ensued if it HAD been signed. That’s how bad the MOA-AD is, given how Bravo and Umbra Kato were already in position to begin occupying territory a month before, whether or not it was signed!
The road to peace is long and hard, already littered with broken promises. Now you want to add another deadly shard?
You cannot insist that peace will come on the back of injustice and that people ought to get out of your way to prove it. You cannot take the pound of flesh at the point of a gun without unjustly drawing blood, and reaping just defiance!
September 2, 2008 at 8:11 am
So DJB, sir. are we to understand this standoff between the Executive and the Supreme may now include the scenario of the justices facing impeachment?
Your asking the Supreme Court to stand down certainly is a big challenge. At the risk of being cliche’ist, I have a in with a frog in my throat as I read your post. :)
September 2, 2008 at 8:25 am
Ding,
PGMA has hit rock bottom and Congress is too busy now preparing for the 2010 elections. She’s not only a lame, but a wounded duck. The claim that she won’t sign the MOA AD “in any form” was an absurd repudiation of the entire peace process making a desperate plea, oh please, for “moot and academic”. Its replacement with “DDR” (disarmament, demobilization and rehabilitation) has always been my precondition for real peace talks (where the rebels aren’t pointing a gun to our head). But you can’t graft a live sapling on dead, crooked timber.
And why anyone would give up the Bangsamoro People to the terrorist MILF, along with a good chunk of Philippine territory, still baffles me.
It’s time to put them on the lists of the EU, US and UN as terrorists, which the State Dept. wanted to do last Sept, 2007, but was stopped only by the “peace technologists” at USIP, Kristie Kenney and PGMA so the latter could try her luck for a peace legacy and a third and forever term.
September 2, 2008 at 8:38 am
as an ardent believer in, and follower of, the rule of law, i totally agree with abe margallo. the sc’s action in issuing a tro against the moa is, i believe, not in conformity with the constitutional scheme of separation of powers, and constitutes an undue extension of the checks and balance principle.
the next bone of contention is how we go about impeaching and trying sc as a collegial body, i.e., who will preside at the impeachment trial?
September 2, 2008 at 8:49 am
Bencard,
Davide should’ve been impeached for what he did on 20 January 2001 (Edsa Dos). Indeed, I called for his impeachment in a PDI column. I don’t think you can impeach the Court as a collegial body though. But since the Senate Impeachment Court is in fact superior to the Supreme Court “in all cases of impeachment”–their verdict cannot even be appealed to the Supreme Court as it is final and executory–there would be no problem trying an individual Justice like Hilario Davide or Reynato Puno. It is ONLY when the President is on trial that the SC Chief Justice sits as president of the Court, if memory serves. Except in that one instance, the Supreme Court has NOTHING to do with impeachment proceedings and trials, though of course EDSA Dos changed all that theory in a trespass that I believe our friend ABE Margallo still supports to this day, along with the rest of the EDSA DOS diehards.
September 2, 2008 at 8:58 am
Btw Bencard, even when the SC CJ sits as presiding judge, he has NO vote as I think you know. So when the Senate Impeachment Court’s Craven Eleven virtually acquitted Erap Estrada on 16 Jan 2001, he already knew he would be cleared of all charges. Which is why the subsequent narrative of the SC that he later “constructively resigned” just four days later, will be seen as a rather strange thing for a President who already knew he would be acquitted at trial. It was a coup d’etat under cover of mob rule by Davide and Reyes and GMA–later sanctioned by the Court.
I would support impeachments against the present Court, if and when the iceberg of corruption, bribery and dirty deals beneath Padre Faura is blown wide open by the media or some whistleblower.
Maybe the CA justices will do it for us if one or more of them decides to be that whistle blower on the High Court.
September 2, 2008 at 9:01 am
The Rule of Law is nothing but form and formality without the Spirit of Justice as fairness being its substance and inspiration.
September 2, 2008 at 9:08 am
Erratum on my note above, DJB. I misread a portion. My query re the SC being asked to stand down was in reaction to sir Ane’s piece. But gentlemen, Bencard included, will thee SC stand down and will anyone, you think, initiate an impeachment case versus the justices?
September 2, 2008 at 9:27 am
Ulta vires?
Fr. Bernas in his column today covered this matter:
There couldn’t be any better explanation on the ultra vires issue than the foregoing.
We seem to be in agreement too on the analogy I have drawn re the Pimentel proposal. Bernas has written:
September 2, 2008 at 9:40 am
It still boggles me that something as important as territorial boundaries and sovereign rule are termed by Mr. Margallo as “purely executive” in nature when it is clear that the legislative and judiciary and ultimately, the people, especially those in the areas affected, have an intrinsic interest in the matter.
Moreover, even if the MoA does mention plebiscites of sorts, it does not specify under whose terms those plebiscites will be conducted — there is no mention of the Philippine Constitution thereon. Are the plebiscites going to be conducted under the rules of the Philippine Constitution? Or will a Bangsamoro Constitution be drafted for it? Are the plebiscites going to be administered by the Comelec? Are the plebiscites going to affect the citizenship of those who live under Bangsamoro — considering that “bangsa” literally means nation, and for all intents and persons, implies a step towards a separate country altogether? What happens to the ARMM? Will the MNLF hold the ARMM and the MILF hold the Bangsamoro fringes?
Do these questions comprise of “merely” executive matters? Do they clearly exclude judicial and legislative interest, when even the name BJE speaks of a juridical body?
September 2, 2008 at 10:15 am
Abe,
I have to chuckle. Bernas also supported Davide’s infernal act of judicial-military putschism against Erap, or more to the point, against the Senate sitting as an impeachment court. He is the progenitor of our judicially activist Constitution, a legalist’s approach to “prevent” another Marcos. No constitutional innovation has been inutile and paradoxically apposite in its actual effects.
Here he displays pure hubris, since he was apparently the “Constitutional expert” who assured the Palace it was intro vires for them to make false promises and to allow Dureza et al to negotiate in utter bad faith.
That of course is why they did it in secret, as recommended to them by Tuminez et al at the USIP, in ill-advised emulation of the Sinhalese ceasefire with Tamil Tigers, which also has led to nothing but strife and bloodshed.
Of course dismemberment of the secular republic would suit the Catholic Church just fine, for that would surely lead to TWO theocracies: one run by the RCC, the other by the MILF and the Bearded Ones from Waziristan.
It would be like the olden days, when Spain and Portugal split the world in two. Damn Jesuits!
September 2, 2008 at 10:21 am
Sure. Anyone can propose revisions or amendments to the Constitution. But the three Constitutional means for doing that are Con-con, Con-ass, and PIA. There’s nothing there about proposing chacha through a MOA-AD that the would fall into international law jurisdictions like the OIC, ICJ and even the UN (those witnesses at Putrajaya weren’t just props, eh?).
Bernas is guilty of a transitive fallacy (cart before the horse), isn’t that obvious?
September 2, 2008 at 10:36 am
Bencard,
I too am an ardent defender of Rule of Law. So, what is your opinion about the sufficiency in form and substance of the MOA-AD as proposal to amend or revise the Constitution for the purposes therein implied?
September 2, 2008 at 11:10 am
Jon, according to Bernas, with whom I basically agree, “The need for [a constitutional] process is [in the MoA-AD] even if not in the language we can easily understand. The negotiators had to devise a lot of language engineering to satisfy the constitutional requirement of the Republic while at the same time producing something acceptable to an opposing side reluctant to accept the Constitution.”
At this stage of the peace negotiation, the need for a judicial oversight is yet uncalled for because the process is still purely political (or “purely executive,” as you put it), not judicial. Congress or the people (especially those who are directly affected or disadvantaged by the MoA) are not expected to act favorably on the presidential peace initiative, if they consider it to be foolhardy in the first place.
Based on our constitutional system, the courts, the Supreme Court including, have no business dealing on the wisdom or folly of a political act (for instance, the decision to negotiate with the MILF, instead of the MNLF) except, like any other citizen, to vote out of office an unwise president or some silly members of the senate who would ratify such an initiative and then proceed to propose an amendment to the Constitution for the purpose. If you think you are aggrieved by these decisions by the political branches of the government, you are free to vote and campaign against them. Meanwhile, the duty of the court is only to allocate, delineate or acknowledge governmental powers including its own according to the mandates of the Constitution, no more, no less.
Dean, I can type with only two fingers so I hope this will suffice to answer some of your concerns too. I have however disagreed with Bernas when he’s wrong as when he had defined the word “initiate” in the amendment provision during the Davide impeachment (adopting his definition, the robed gang hailed their Chief) and then flip-flopped on the same definition during the Arroyo impeachment. I am however morally certain he is constitutionally on the money on this one.
September 2, 2008 at 12:55 pm
Abe,
do you think he is really speaking as lawyer/constitutional expert, or as Jesuit priest full of hubris who probably cannot sleep at night because he has the blood and grief of nameless thousands on his casuistic hands?
Still the Court will likely rule “moot” citing Devanadera’s perfervid if largely incoherent and self-contradictory statements. It will spend a hundred fifty pages or so admonishing this or that patently impossible thing, including the nontransparency of the process, then rule “academic” but explicated.
Another perfect cutting of the Baby in half by our Dark King Sulayman in black robes on behalf of the False Mother of the Constitution. It’ll be a whitewash and GMA could try again.
But I too feel confident they will make the point I’ve made about Bernas’ transitive fallacy and once more clarify the manner and method by which the Constitution is properly revised or amended.
Which should come first, a new Constitution or a death-dealing MOA?
If an IP has religious practices involving human sacrifice, would you also be “morally certain” about Bernas’ logical position: that some abstract insinuation to change the Bill of Rights to life, liberty and security would make it right to promise them such respect for their cultural and indigenous practices in a MOA signed by the Executive Branch.
September 2, 2008 at 3:49 pm
In any case history has unfolded already, and whichever way you turn it treachery on the part of the MILF cannot be denied.
The fact that they refused to leave Lanao del Norte and instead threw a murderous temper tantrum only proves how much they care for their potential constituents, and proves nothing but their lack of trustworthiness, and the fact that they are merely bandits and terrorists as opposed to being noble muhajedin as they claim.
September 2, 2008 at 4:34 pm
Abe, in the interests of conserving space in the already cluttered homepage of FV, could you insert the tag “” at some point in your blog posts so that the full article is not displayed (and the link “more” appears at the bottom of the summary on the homepage for the benefit readers who want to read beyond the first couple of paragraphs of your article).
September 2, 2008 at 4:36 pm
Sorry Abe, the characters [less than sign], followed by “!–more–” and then followed by a [greater than sign] should have been in between those quotes following the word “tag” in my above comment.
September 2, 2008 at 9:49 pm
Tx Benigs, now I’ve learned something new again.
April 25, 2009 at 4:09 pm
I strongly recommend that you turn the No Follow off in your comment section.
I’ll watch Google Webmaster Tools, and if the links don’t show up after a couple of weeks — I won’t go back to that blog again.
Another suggestion: you should have a Top Commentator widget installed.
Do Follow and Top Commentator will ensure that you have a successful blog with lots of readers!