SC review of MoA blatantly irregular, imperils peace process

The future State of Bicol per Senate Joint Resolution No.10 (SR 10) will have greater powers than the Bangsamoro Juridical Entity proposed in the MoA-AD (the Memorandum of Agreement on Ancestral Domain between the Government of the Philippines and the Moro Islamic Liberation Front, now under scrutiny by the Philippine Supreme Court.)

The senate resolution, to begin with, expressly permits Bicol, subject to certain conditions, to secede or dismember itself from the Federal Republic contemplated in the senate scheme. Additionally, under the same initiative that was introduced by 12 senators in April 2008, Bicol, as well as 10 other proposed states, will possess, among other powers, the following: 1) Exercise powers the Federal government shall not exercise because they are reserved to the individual states; 2) Enter into trade relations with other countries; 3) Grant reprieves, commutations and pardons, remit fines and forfeitures concerning crimes committed against state legislations; 4) Enact laws relative to agriculture, agricultural lands, flora and fauna, mines, mineral resources, gas, gas-works, water, water supplies and water power; 5) Establish courts for the governance of its indigenous populations; 6) Organize and maintain civilian police forces, local prisons and reformatories; 7) Create autonomous regions consisting of provinces, cities, municipalities, and geographical areas or alter the same and be responsible for the defense and security of those regions; 8)Pursue local development in the utilization of mineral, marine and aquatic, forest and other natural resources; 9) Engage in local and international trade and commerce to attain self sufficiency and progress; and 10) Incur foreign loans to fund state or local government projects.

The main justification given in the “whereas” clauses for the move to transform the present unitary arrangement into a federal system allowing these awesome grant of powers to the states: the “lopsided arrangement has spawned a host of problems including massive nationwide poverty to runaway insurgencies and rebellions that feed on the societal inequalities in the nation.”

Still, some people are calling the SR 10 “crappy,” although thus far no one is publicly claiming that the 12 senators who introduced the resolution had conspired to commit culpable violation of the Constitution or treasonous acts. The reason, arguably, is simple: congress, of which the senate is a part, is expressly authorized by the Constitution to initiate whether inconsiderable or radical constitutional reforms of the present setup. So therefore, while SR 10 is blatantly ultra constitutional (to repeat, the resolution allows any region proposed therein to be organized as a sovereign state and secede from the republic), it is not unconstitutional. Moreover, at this stage of the senate-initiated constitutional reordering, the action of the senators is essentially political and therefore beyond the pale of judicial review.

By comparison, what is the basis of the presidential power to wage war, conclude peace or make treaties or executive agreements? Basically, it is the president’s power as commander in chief of the military.

Now, while the president shares with the senate the power to make treatise or international agreement, she (or her alter egos) alone negotiates or adopts bargaining inducements, devices or strategies that may lead to a final compact of peace.

Decades of armed conflict in Mindanao have already cost more than a hundred thousands human lives and the dislocation of more than a million. In the political give and take of the delicate and complicated Mindanao peace process, the president, and none other, is supposed to be the “sole organ” to do the communicating and negotiating and as such may rely on a large reservoir of inherent and extra-constitutional powers of the executive to serve the public interest. In so doing, she may pursue political pragmatism or go as far as push the constitutional envelope (for example, ignore Philippine claim of Sabah for peaceful co-existence and trade relations with Malaysia, or, as in the instant controversy, sit in the peace table and negotiate with armed rebel group MILF to prevent further bloodletting among brothers and pave the way for national economic progress).

In certain extraordinary situations, the president may in fact employ the classic Lockean prerogative “to act according to discretion for the public good, without the prescription of law or sometimes against it.” (Emphasis mine)

These only mean that, as in the matter of the MoA-AD that has generated raging nationwide discourse and public anxiety, 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 it deems appropriate to institute structural or systemic change in governance.

Let me ask this question again: 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, if the president dillydallies, the court can also order her to recover a lost ground or territory, inflict punitive action or conduct an all-out war to win peace?

The legal answer to the foregoing challenge is almost commonsensical: while the political branches of the government and the people directly may pursue political acts and decisions ultra-constitutionally, an unaccountable judiciary is always constrained to act within the constitutional box. It has to be so since in so far as the court is concerned, the Constitution is a read-only document notwithstanding judicial indulgence at times in “creative jurisprudence” (e.g., the invention of “substantive due process” by the US Supreme Court to protect corporate rights or of “constructive resignation” by the Philippine Supreme Court in the case of President Estrada’s ouster through People Power II, to pave the way for an intra-constitutional succession of governmental powers). However, even in “judicial activism,” the court is weighed upon by the very nature of its constitutional obligation to always anchor or fasten its reading of the Constitution strictly to the existing constitutional framework.

Beyond legalism, there are pragmatic reasons why the classic view that executive power is restricted to enforcing the law and that the judiciary may oversee such enforcement does not apply when it comes to military (and foreign) affairs: 1) the need for secrecy, and 2) the president has access to information that may not be available to the judiciary (or congress) such as conditions and political dynamics on the ground or details in operations that cannot be shared without jeopardizing those operations. In these areas, the political judgment of the executive may not be replaced by judicial discretion, the president being accountable only to the public as a whole.

It is therefore 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.

If the public offers stiff resistance to the MoA-AD and forces the president to scrap it, so be it. The SC however may not arrogate the same prerogative without violating the Constitution or needlessly imperiling the Mindanao peace process.

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