Philippine 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.

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