MANILA, Philippines—Two Supreme Court justices have noted unconstitutional provisions in the proposed Memorandum of Agreement on Ancestral Domain (MOA-AD) between the government and the separatist Moro Islamic Liberation Front (MILF).
During oral arguments Friday on the controversial document, Justice Antonio Carpio said several provisions clashed with the Philippine Constitution and that implementing them would require amendments to the Charter.
Justice Adolf Azcuna said the MOA-AD, “on its face, is patently illegal under our present laws.”
Carpio also said the Bangsamoro Juridical Entity (BJE) to be formed under the document would in effect govern all of Mindanao and Palawan, as well as the “lumad” [indigenous peoples] in Mindanao and their ancestral lands.
But Justice Renato Corona said the parties questioning the agreement appeared to be afraid of nothing because, he pointed out, without the signatures, the document did not legally exist.
The MOA-AD is being questioned for various reasons by the province of North Cotabato, the cities of Zamboanga and Iligan, Senator Manuel Roxas II, former senator Franklin Drilon and opposition spokesperson Adel Tamano. The Supreme Court has issued a temporary restraining order on the signing of the document, scheduled for Aug. 5 in Malaysia, by the Philippine government and MILF peace panels.
5 hours
It took Lourdes Sereno, counsel of Drilon and Tamano, nearly five hours to argue her case before the high court.
The government panel said the hearing only proved that the MOA-AD was constitutional.
“Nothing was proven to be unconstitutional. We were compliant with the instructions of the President to follow the Constitution,” Hermogenes Esperon Jr., President Gloria Macapagal-Arroyo’s peace adviser, told reporters after the hearing.
Solicitor General Agnes Devanadera also said the hearing showed that the MOA-AD was “not self-executory,” as Sereno had claimed, and was actually “a work in progress, preparatory to further actions within the legal framework of laws in the country and the Constitution.”
Sereno argued that some provisions in the MOA-AD skipped constitutional processes, such as congressional action and a plebiscite.
She cited numerous purported violations of constitutional provisions, prompting Chief Justice Reynato Puno to joke that to save time she should just have enumerated those provisions that were not violated.
Sought for comment after the hearing, Drilon maintained that Sereno was able to argue the case of the petitioners.
Dismemberment
“It is the duty of the President to uphold and protect the Constitution. It is contrary to public policy and public order to advocate a dismemberment of the republic through the MOA,” Drilon said.
The justices raised many points when they questioned Sereno, including the unconstitutionality of the MOA-AD provisions putting the supervision of natural resources under the BJE and allowing it to have its own police force, internal security and judicial system.
Justice Teresita Leonardo de Castro also said the MOA-AD was different from federalism because the BJE could be allowed to enter into agreements with foreign nations.
Puno also pointed out to Sereno that on the signature page of the MOA-AD, Foreign Secretary Alberto Romulo was designated as a witness and not as an endorser—an argument, Puno said, that the MOA-AD was “not a done agreement” yet.
The Chief Justice also said that nothing in the document said it was final.
Sereno was only the first of six lawyers scheduled to argue the case for the petitioners.
Before he adjourned the proceedings, Puno announced that more petitions against the MOA-AD were still being filed, the latest being that from the province of Zamboanga del Norte.
The oral arguments will resume on Aug. 22.
‘BJE is not the state’
During his questioning of Sereno, Carpio said “there are obviously several provisions of the MOA that contradict the Constitution.”
“BJE is not the state, correct?” Carpio said, to which Sereno agreed.
Carpio also said that with the MOA-AD defining the “Bangsamoro people” as all indigenous people of Mindanao, without reference to religion, it would encompass even the Christians and the lumad.
“If the MOA pushes through, the ancestral domain of all lumad in Mindanao are now part of the BJE. If they want to leave, they can but they have to leave behind their ancestral domain,” he said.
Carpio said the MOA-AD refered to land and natural resources possessed by the Bangsamoro people from time immemorial to the present. He said that if the lumad were included, then “you’re talking of the entire Mindanao, Sulu and Palawan. In short, ancestral domain will now be the entire Mindanao, Sulu and Palawan.”
Carpio also asked if the lumad could be included in the Bangsamoro people without consultation.
Sereno said this could not be done. She said an act of Congress was also required.
Fear of the unknown
Corona observed that many concerns were being raised even if the document itself had yet to be signed.
“You’re giving me the impression this is mere fear of the unknown. How can you fear something that does not exist?” he told Sereno.
In response, Sereno said the document existed and would become effective when signed.
Justice Consuelo Ynares Santiago also asked if the petitions were premature, considering that the MOA-AD had yet to be signed.
Sereno said there were “self-executing provisions” that could lead other countries to proceed with the execution of the agreement once signed.
Justice Conchita Carpio Morales asked about the MILF statement that the MOA-AD was a done deal because it was already initialed.
Sereno said she considered the statement an insult to the Organization of Islamic Conference, the Malaysian government and the ambassadors invited to witness the signing.
Azcuna asked if negotiating parties could agree to change existing laws.
Sereno said this could be done but should be subjected to proper procedures.
Azcuna wondered what was wrong about parties agreeing to change existing laws later.
Sereno said it would be tantamount to committing an act against a principal, but the act would be validated later. “The accountability of government officials to uphold the Constitution would be rendered nugatory,” she added.
Executive privilege
The Office of the Solicitor General, representing the government peace panel, had earlier invoked executive privilege in keeping the negotiations with the MILF and the draft MOA-AD secret, saying the talks were similar in nature to diplomatic negotiations.
Earlier Friday, the Supreme Court rejected a last-minute plea by Devanadera—her second this week—to postpone the oral arguments.
Devanadera refused to disclose the reasons for it in open court. “I would like to request that the motion be heard in chambers in view of some very sensitive issues that led us to file this postponement,” she said.
The lawyers for Roxas, Drilon, North Cotabato, Zamboanga and Iligan objected to the postponement but agreed to the closed-door hearing, which lasted about two hours.
At around 11:30 a.m., Clerk of Court Luisa Villarama announced that the hearing would resume at 1 p.m.
Roxas commented: “They are hiding what they tried to sneak through, which is the partition of the country. The question-and-answer by the justices in the oral arguments revealed this outrageous sellout.”
Pro and anti
Several groups trooped to the Supreme Court to express support for or disapproval of the MOA-AD.
Lawyer Elly Pamatong and 20 members of Bangon Pilipinas group arrived at 7:30 a.m., saying the MOA-AD had turned over the sovereignty of a part of Mindanao to “state enemy” Malaysia.
About 200 members of the Bangsamoro People Solidarity for Peace led by Rep. Mujiv Hataman of the Anak Mindanao party-list group marched in two hours later from Manila’s Quiapo district, demanding “Peace, not war in Mindanao.”
They merged with some 30 demonstrators from the People’s Coalition for Bangsamoro Land led by Sultan Mohammad Buno, who had earlier gathered on Taft Avenue.
The Manila Police District, which provided security near the high court, said the demonstrators peacefully dispersed at 12:30 p.m. With reports from Gil C. Cabacungan Jr. and Allison W. Lopez; with editing by INQUIRER.net
