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SC: MILF deal unconstitutional

Arroyo can’t enter pacts needing Charter change

By Tetch Torres
INQUIRER.net
First Posted 12:51:00 10/14/2008

Filed Under: Agreement (general), Judiciary (system of justice), Mindanao peace process, Armed conflict

MANILA, Philippines -- (UPDATE 4) The Supreme Court has declared unconstitutional the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the government and the Moro Islamic Liberation Front (MILF).

The 90-page high court decision, authored by Associate Justice Conchita Carpio-Morales, reminded President Gloria Macapagal-Arroyo that, while she has the leeway to explore all possible means to attain peace in Mindanao, she has no authority to commit the government to an agreement that may require changes to the Constitution but has to consult Congress or the people.

"Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities," the tribunal said.

However, it stressed: "Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested."

The high court said Paragraph 7 of the MOA-AD practically guarantees amendments to the Constitution to make it conform to the agreement.

"Paragraph 7 is inconsistent with the limits of the President's authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the consensus points found in the MOA-AD. Hence, it must be struck down as unconstitutional," the high court said.

Chief Justice Reynato Puno, one of the justices who declared the MOA-AD, in his separate opinion, said "the President can seek peace with the MILF but without crossing the parameters of powers marked in the Constitution to separate the other branches of government to preserve our democracy."

He also scolded government peace negotiators of making a ?burlesque of the Constitution.?

"During the whole process, the government peace negotiators conducted themselves free from the strictures of the Constitution. Respondents' thesis of violate now, validate later makes a burlesque of the Constitution," Puno said.

The high court also said Arroyo?s peace adviser, Hermogenes Esperon Jr., committed ?grave abuse of authority? for failing to hold consultations as mandated by law.

The seven justices who voted to dismiss the petition said the government?s decision not to sign the MOA-AD, made after the tribunal issued a temporary restraining order against the accord?s signing in early August, made the petition of those opposed to the accord ?moot and academic.?

?In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process mandated by the law,? the Supreme Court ruling said.

The high court said that the ?furtive process by which the MOA-AD was designed and crafted runs contrary to and excess of the legal authority and amounts to a whimsical, capricious, oppressive, arbitrary, and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.?

The high court also advised the government not to sign the MOA and similar agreements and instead ?conduct public consultations in accordance with the right to information, with respect to further negotiations with the MILF.?

Aside from Morales and Puno, those who voted that the MOA-AD was unconstitutional were Associate Justices Consuelo Ynares-Santiago, Antonio Carpio, Adolfo Azcuna, Ruben Reyes, Leonardo Quisumbing, and Alicia Austria-Martinez.

The seven who said the MOA-AD was ?moot and academic? Associate Justices Dante Tinga, Nenita Chico-Nazario, Presbitero Velasco Jr., Antonio Eduardo Nachura, Teresita Leonardo-De Castro, Arturo Brion, and Renato Corona.

Among the petitioners against the MOA-AD were North Cotabato Governor Jesus Sacdalan and Vice-Governor Emmanuel Piñol, Zamboanga City Mayor Celso Lobregat, Representatives Isabelle Climaco and Erico Basilio Fabian, former Senate president and Liberal Party National chairman Franklin Drilon and United Opposition (UNO) spokesman Adel Tamano, and Senator Manuel Roxas II.

They said that the MOA-AD was tantamount to the creation of a separate state where several provinces in Mindanao would be included into an independent Bangsamoro Juridical Entity (BJE) which will have the power to enter into treaties, have their own courts and police force, among others.

Protests against the MOA-AD prompted the government to withdraw the signing of the agreement in Kuala Lumpur, Malaysia last August.

For three consecutive weeks, the high court conducted oral arguments on the issue.



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