The upturn in military operations in a so far limited area in Mindanao (whether we label it war or police action) against Moro rebels operations yesterday coincided with the Supreme Court’s latest full bench (en banc) session on the MoA-AD.
Going by the reports about the 9-hour hearing, it may be, from this Flipino non-lawyer’s view, that the high tribunal will rule that the petitions questioning the initialed agreement’s constitutionality are “moot.”
Here are the main points raised by the justices::
Chief Justice Reynato Puno: There are certain presidential actions that are vested with the President as Commander-in-Chief which necessarily do not require consultation with the people. As President, part of that power is to forge peace agreements “to restore order” in the country.
“Why should the President consult the people with respect to the parameters of power?” Such parameters “are already set in the Constitution.” Aside from judicial remedy, the public may still reject a presidential action by exercising its sovereign right. This is the “political solution” which may satisfy or cure assumptions that lack of consultations invalidates presidential action.
Justice Arturo Brion: The initialing of the contract “simply reflects” the intention of the parties and that the absence of signature means “effectively there is no MOA.” As such, “the government has not given its consent to the MOA.,” Since there is no perfected contract in the first place, “then there is no case.” Whether there is “justiciable case that is ripe for judicial determination.”
Justice Antonio Nachura: “There is no MOA in the first place” since it was only initialed and not signed.
Justice Ruben Reyes: Under the provision of contracts, the MOA-AD has no legal significance “with the absence of signature” and thus, “not yet a perfected document.” The initialing of the MOA-AD may simply mean that the parties “have initialed a true and correct copy” and not necessarily the final contract because the one who initialed the document on behalf of government “has no authority.” “So it is not a contract, not an agreement (yet).” “What is the value of this document? It is not signed. There is no basis, there is nothing anymore to prohibit.” “With the absence of the signature of the people who are authorized to sign, it is not yet a perfected document.” When the document was initialed, it was only an authentication of the pages of the document.
Associate Justice Conchita Carpio-Morales: President Gloria Macapagal-Arroyo has no authority to delegate the creation of the Bangsamoro Juridical Entity (BJE). Even if the President had the authority to create the BJE, “the executive could not bind Congress.”
Associate Justice Antonio Carpio: “On the basis of that document, you (referring to chief negotiator Rodolfo Garcia) do not carry the full power of the President. Your authority is only based on the document?” “[In] the last two plebiscites, the subject matter was ARMM [Autonomous Region in Muslim Mindanao], right? And ARMM, the Organic Act of ARMM does not provide that the ARMM will have its internal police, security force, its own courts, its own Comelec, correct?” “So can that [1989 and 2001 plebiscite] be considered consultation? Will that consultation apply now in the BJE [Bangsamoro Juridical Entity] concept?”
Responding to the argument by Dean Pacifico Agabin, lawyer for Senator Manuel “Mar” Roxas, one of the intervenors, that the executive could not commit to the MILF the amendment of the Constitution to conform with the agreement, Justice Antonio Carpio asked: “There is that clause under the MOA, correct?” “Yes,” said Agabin during Friday’s oral arguments at the Supreme Court that is trying to determine the constitutionality of the MOA-AD. “Then the MOA is unconstitutional on that ground,” said Carpio who also cited a television interview by an MILF leader who said that the Constitution needed to be amended to conform with the MOA. Carpio said the MILF wanted this provision to be included in the MOA because “the MILF did not want to be bound by our Constitution.”
Justice Arturo Brion: “It is a consensus that the MOA will be signed but the government has not yet given anyone the authority to sign the MOA. Since wala pang [there is no] go-signal from the government to sign the MOA, even if it has been signed, it will not be binding.”
Associate Justice Presbitero Velasco questioned why the MILF was not included as respondent in the petitions filed by the petitioners against the MOA-AD. Velasco said that all parties to the controversy should have been included so that they would all be bound by the Supreme Court’s decision.
Associate Justice Adolf Azcuna: Since there had been three plebiscites conducted in 1979, 1989, and 2001 for North Cotabato’s inclusion to ARMM, it could be considered a consultation. “How many participated in the three plebiscites for inclusion in the ARMM? Don’t you think that is enough consultation done by the government regarding the inclusion? They have been consulted three times, they said yes but are overwhelmed by the rest of the province.”
Chief Justice Reynato Puno gave the Office of the Solicitor General until Tuesday to answer the opposition to its motion to dismiss the petitions against the MOA-AD. After receiving SG Agnes Devanadera’s memo, the Supreme Court may decide to consider the issue for resolution without further oral orguments.
To many observers, it could be abundantly clear now that the petitions are destined for the dustbins. How the events in Mindanao will play out is an altogether harder question to answer.
Popularity: 1% [?]
Ding,
If I might offer an analogy to illustrate a point…
Murder comes in two forms: murder and attempted murder. Both are heinous crimes.
In the case of the MOA-AD, its brazenly illegal provisions would’ve been tantamount to a murder of the Constitution.
To say that the MOA-AD’s constitutionality is moot and academic and need not be ruled upon, is analogous to saying we should not prosecute attempted murders that happened to be exposed and prevented at the last minute.
The MOA is DOA. But what really needs annulling is the Indigenous People’s Rights Act (RA 8371) from which a lot of the verbiage on ancestral domain in the MOA-AD comes verbatim.
IPRA is NOT moot and academic and can be questioned again in Court because of the MoA fiasco.
djb, there’s no such thing as “murder” of the constitution. an act may be invalid for being unconstitutional but not until the courts, i.e. the supreme court, says it’s so, and explains why. until then, it’s valid. it’s not just for anyone to proclaim that something is “brazenly illegal”.
Sir,
With regards to their atrocities the GRP is pursuing their offensive to this two criminals. They had done terroristic acts, It is lawfull if justice should be given to the victims to find total justification. The conflict in Mindanao is far in the context of PEACE if dialogue will not continue between the two party. The question, What fate awaits The Bangsamoro Domain MOA? Definitely, if the MILF will not do their part to surrender Umbra Kato & Commander Bravo to AFP, the fate of the MOA-AD is jeopardize hence both party can not have an avenue for dialogue. If the MILF will not lay down their Arms it is not pssible to have a dialogue. To foster lasting Peace in Mindanao the MILF must cooperate to the GRP. I am againts with dialogue, all I want is annihilation of the MILF but as the military offensive echoing
all over the critical areas, I do realized conflict will be forever in Mindanao, unless the GRP will foster dialogue it might be possible that Peace might be realized. The civilians are tired already, all they want is ceasefire. We must give justification to people living in that particular areas, all they want is ceasefire & Peace so that they can manage to cultivate their farm and start
to live without the sound of ammunition that threaten’s their survival. I am also from Mindanao thats why I’ve observed the different angles of conflict.
Sirs DJB and Bencard,
Firstly, Bencard, am glad you’ve jumped into this issue.
To the point: I know that, yes, under an edict, issued by either the Executive, or Congress, or such other government instrumentality is, unless and until overturned and declared unconstitutional, enjoys the ‘presumption of regularity’. But hey, that was the same with Marcos when he instituted that abominable legal construct he dubbed “constitutional authoritarianism” a.k.a one-man-rule.
Indeed my Filipino non-lawyer’s mind tells me this is where our problems begin, when leaders inclined towards self-preservation clothe themselves with the armor of ‘presumed regularity’ and try to get away with ‘murder’. I will even concede the matter of certain ‘edicts’ being upheld by our courts as legal, but without meaning to muddle the debate, is everything ‘legal’ we’ve seen imposed on Philippine society just or even moral? History, recent, or not is replete with tales of Filipinos’ rights trampled upon using perfectly ‘legal’ constructs’.