MANILA, Philippines—Lawyers of the various parties contesting the draft memorandum of agreement (MOA) on ancestral domain with Muslim rebels to create an independent Bangsamoro state asked the Supreme Court on Friday to rule on the constitutionality of the MOA once and for all, as a decision now would guide future negotiations so that “bloodshed in Mindanao will not be repeated.”

They also argued that a high court ruling was imperative as the separatist Moro Islamic Liberation Front (MILF) considered the agreement already “a done deal.”

The arguments were made even as several magistrates asked whether there was still a point to ruling on the validity of the MOA considering that the government has announced that it would not sign the MOA in its present form.

Questioning one of the petitioning lawyers, Justice Antonio Carpio asked whether because of the MILF’s refusal to recognize the various branches of government, the tribunal would need to strike down the MOA before it is signed in order to prevent the country from being dismembered.

The high court is hearing petitions from senators and local officials to have the MOA canceled, arguing that in proposing to create a Bangsamoro homeland to be governed by a Bangsamoro Juridical Entity, it was carving out a separate state for the so-called Bangsamoro people and giving it an identity separate from that of the Philippines. Local officials in Mindanao also claimed that the MOA was negotiated without consulting the people to be affected.

The high court suspended the oral arguments at around 6:40 p.m. and said the sessions would resume on Friday.

It deferred action on a motion of the Office of the Solicitor General (OSG) for the Court to dismiss the petitions against the MOA, arguing that there was no more case because the government had announced that it would not sign the MOA in its present form.

It instead required the OSG to comment on the opposition to its stand and opted to continue with the oral arguments.

The Court also ordered the OSG to submit the draft of the MOA that had been initialed by members of both negotiating panels.

During the oral arguments, Carpio asked Jose Ma. Saavedera, lawyer for the petitioning Zamboanga City officials, if he thought the MILF would leave areas it had occupied if the high court would order it do so. The lawyer replied in the negative.

“If the country is dismembered because of the MOA, can the order of the court put the country back? So if the court has to stop the MOA because it’s unconstitutional, the court has to stop it before its signing, correct?” said Carpio.

Saavedra agreed that the MOA has to be stopped before it is signed.

Basis of authority

At one point, Carpio also asked Rodolfo Garcia, chairman of the government peace panel, what power the panel members carried when they went to Malaysia for the signing of the MOA earlier this month.

Garcia said they carried the power given to them under the memorandum of instructions President Macapagal-Arroyo issued in 2001 and 2003, which listed their duties and responsibilities. He said that on the basis of those two documents, he believes he had the authority to sign the MOA.

When Israelito Torreon, counsel for the North Cotabato officials, argued that the lack of consultation with the province’s residents rendered the MOA moot and that it contained unconstitutional provisions, several magistrates asked whether the high court should continue to rule on the petitions’ merits.

Torreon contended that the court should still decide the case so the government peace panel would be guided in future negotiations and to prevent it from signing another unconstitutional MOA.

Justice Antonio Eduardo Nachura said the questions about the constitutionality of the MOA provisions would have been rendered moot with the scrapping of the agreement.

Torreon cited a Supreme Court ruling in a case against the Presidential Proclamation 1017 declaring a state of national emergency (David vs. Arroyo), that the moot and academic principle is not a “magical formula that can automatically dissuade the courts in resolving a case.”

He said the court could still decide on moot and academic cases if there is a grave violation of the Constitution, if the paramount public interest is involved, the issues raised requires the formulation of controlling principles to guide the bench and if the case is capable of repetition yet evading review. He said all of these conditions were met in the MOA case.

Justice Presbitero Velasco also asked why there was a need to nullify provisions when the MOA has not been signed in the first place. When Torreon replied that the agreement had been initialed, the magistrate then asked if initialing was the equivalent of signing it.

The lawyer then replied that the MILF considered the MOA “a done deal,” and added that under international law, initialing a document constitutes authentication of the text and is also one of the latter stages in making an agreement effective.

Unperfected document

Velasco also said some of the stipulations in the agreement were self-executory “so the MOA, as a framework agreement, is effective upon signing.”

Nachura said that there was no valid, existing contract without the signing taking place.

The justices queried Pacifico Agabin, lawyer for petitioner Sen. Manuel Roxas, on whether the initialed draft of a treaty would mean that the treaty was as good as signed and would be binding on the government. Agabin said yes.

Agabin said the initialing was being used by the MILF in support of its argument that the MOA was a “done deal.” He agreed that while the initialing could have been made for authentication purposes, it actually committed the parties to the provisions of the MOA even prior to the signing.

Justice Ruben Reyes asked what the value of the agreement was. “It’s not a perfected document, it’s still unsigned. Because of the announcement of the President, the government is not going to sign the document, therefore there’s nothing anymore,” he said.

Violence in Mindanao

Saavedra said if the provisions were not struck down there would be nothing to prevent the government from signing a similar agreement. He also said violence might escalate in the south.

“If the Supreme Court will not say this is null and void, people will keep on saying it’s a done deal. They’re already waging war even if it wasn’t signed,” he said.

Justice Arturo Brion also said that even if the provisions are unconstitutional, these are not binding on the government panel because the MOA has not been signed.

Brion said the issue was not that the MOA should be canceled because there was no MOA to speak of, but what should be canceled was the authority to sign.

Saavedra said there was no cancellation of the MOA, and the MOA had been initialed and was a done deal in the mind of the MILF.

Zamboanga City Mayor Celso Lobregat said that if the MOA is signed, the MILF might go to international courts and say it had been recognized by the Philippine government.

Nachura asked Lobregat if he would withdraw the case once the government categorically states it would cancel the MOA and would not enter into agreements that violate the Charter and would get the people’s views first.

“If the government will state in its pleading that they’re going to withdraw the MOA, cancel it and future negotiations will be within the realm of the Constitution, and also with true consultations ... then I don’t think we’ll have a problem,” Lobregat said.

Solicitor General Agnes Devanadera earlier said the MOA would not be signed in its present form, and that the government would be conducting consultations with the affected communities.

Not ‘canceled’

Devanadera also explained that the government was not using the term “canceled” to refer to the MOA because it would imply that it had entered into an agreement and then withdrew.

In this case, she added, the signing was just stopped.

In the latter part of the hearing, the justices focused on the international implications of the Bangsamoro Juridical Entity that would govern the proposed Bangsamoro state.

Agabin, replying to a query from Justice Morales, said the BJE created by the MOA was higher than a public corporation and was actually an “associated state” with “so many powers” not provided for under the Constitution.

“The President does not have the power to create a political unit or a public corporation, that’s vested in the legislative,” Agabin said, adding that the Executive Branch, which negotiated the treated, may not bind Congress to comply with the MOA provisions.

Diplomatic document

Carpio also queried Agabin on whether the MOA should be regarded as a treaty, which would need Senate ratification. Agabin replied yes, adding that the MOA would also have given the MILF an international personality or a status of a belligerent.

Agabin agreed with the observation of Justice Leonardo Quisumbing, that the presence of the foreign affairs secretary, representatives of the United States, Malaysia, Japan, Australian and the Organization of Islamic Conference who were to witness the MOA signing meant that the MOA was a diplomatic document.

Justice Adolfo Azcuna observed that the MOA might be construed under international law as something binding on the government. He said that if the MOA is signed, it would also commit the government to change its internal laws, including the Constitution, to validate or support the MOA provisions.

“It’s not a defense, under international law, to say [later] that we can’t change our internal laws because by signing the MOA, we also committed to change our Constitution and our internal laws,” Azcuna said.

Chief Justice Reynato Puno explored the way the government has dealt with the MILF, whether as a liberation movement, a revolution, a terrorist organization or a lawless group.

Agabin said the Constitution does not provide for the right to armed revolt and that aspirations should be expressed through democratic means.

Puno also inquired about how the President should have exercised her military powers in dealing with the MILF, from the calling on the Armed Forces of the Philippines to imposition of martial law. Agabin said the President opted to use her “lesser powers” as an Executive to negotiate peace with the MILF.