MANILA, Philippines—The government was hard-pressed to defend its position that a provisional agreement on ancestral domain with the secessionist Moro Islamic Liberation (MILF) Front had no binding effect so it had no case to answer before the Supreme Court.

During arguments on the second day of hearings on the petitions against the proposed Memorandum of Agreement (MOA) on ancestral domain, Solicitor General Agnes Devanadera found herself on the dock as various high court justices warned of the dangers in international law that the government has exposed the Philippines and the risk of dismembering the national territory because of the MOA.

At least two magistrates pointed out that by initialing the MOA, the government had bound itself to sign and honor it once the restraining order (TRO) that the high court issued against it was lifted.

Devanadera said the high court should dismiss the petitions against the MOA, arguing that there was no more case to decide as the agreement would “not be signed in its present form or in any other form” and that it had been “set aside.”

She initially told the high court that the government peace panel had no authority to sign the MOA so that their initialing it would have no binding effect. But she later modified that statement, explaining that what she meant was that the panel had no authority to sign a final peace agreement.

Devanadera argued that the government would not have been bound by the MOA as the document only contained consensus points for consultation, and these points would have had to go through constitutional processes.

She said that all the MOA did was to list down these consensus points, or the topics that would be subjected to further negotiations.

Devanadera said that the fact that President Gloria Macapagal-Arroyo had not yet seen the MOA in its final form showed that the agreement was truly a mere “codification of points of consensus” and “a process in continuum” that the President has yet to approve.

Binding on gov’t

Supreme Court Justice Adolf Azcuna said that in international law, a declaration of consensus points would be binding on the government. Even a unilateral statement by representatives of a state before an international forum is a binding obligation, and the state could not renege on its obligation by claiming that the agreement was unconstitutional, he said.

“From a legal standpoint, you have the MOA initialed by the panel and if you withdraw the TRO, that initial means that under international law, they are compelled to sign it,” he said.

He explained that if the MOA had been signed, the state would have been required to change the country’s internal laws in order to comply with it.

Malaysia, as the broker of the peace agreement, could even sue the Philippines before the international courts to compel it to implement the MOA, he added.

Azcuna said that the Supreme Court had to stop the signing of the MOA on the eve of the scheduled signing in Kuala Lumpur last Aug. 5 “because if it had been signed, it would have been a binding international obligation. Malaysia can compel us to change our Constitution.”

Since then, MILF forces have attacked towns, looting and burning homes and sending 220,000 people fleeing. The military, which is now engaged in operations against the forces of the so-called rogue MILF commanders, estimates that about 200 people have died in the three-week conflict so far.

The high court is hearing petitions from Sen. Manuel Roxas II and several local officials from Mindanao to have the MOA canceled, arguing that in proposing to create a Bangsamoro homeland to be governed by a Bangsamoro Juridical Entity (BJE), the MOA was carving out a separate state for the so-called Bangsamoro people and giving it an identity separate from that of the Philippines.

Chief Justice Reynato Puno ended the oral arguments at 6.30 p.m. yesterday, asking both parties and intervenors to submit their memorandums and position papers in 20 days.

Devanadera was also asked to submit Executive Secretary Eduardo Ermita’s written authorization that the MOA would not be signed in its present or future form, the travel authority to Malaysia of the members of the government peace panel and the final draft of the MOA.

Dismemberment

During the lengthy questioning of Devanadera, Justice Antonio Carpio said the Philippines could indeed be brought before the international courts for failing to honor the MOA, and the country could be forced to change the Constitution regardless of whether Congress or the people agree.

“You see the danger that could have happened had that MOA been signed? ... You are risking dismemberment of the country on your conjecture that that’s not an international obligation,” Carpio told Devanadera.

Not international agreement

Carpio then asked what the government would do if the international courts order the country to comply with the MOA.

Devanadera replied that the Executive would cross the bridge when it gets there.

She said that even though the signing of the agreement would be held outside the Philippines, the agreement was for a domestic purpose and the venue did not “convert an internal document to an international document.”

Sedfrey Candelaria, legal consultant of the peace panel, also said the panel never acceded that the MOA was an international agreement.

He said that if the Philippines were to be dragged before the International Court of Justice, the court could not compel it to do anything if it refuses to submit to the court’s jurisdiction.

But on questioning from Carpio, Candelaria agreed that implementing the MOA would require an overhaul of the Constitution.

Carpio said that among the provisions that would be changed to accommodate the MOA were the provisions on territory and the provision for the country to have a single, national police force.

No authority to sign

Devanadera told the court that the panel had no authority to sign the MOA and that it was authorized only to negotiate for the particular document. She added that it had no authority to enter into an international agreement.

Carpio asked if the MOA was then just a piece of paper and would have no legal effect internationally and domestically, why did the panel invite the Organization of Islamic Conference and foreign officials, including United States Ambassador Kristie Kenney, to witness the event.

“You mean to say you asked them to witness an event that has no legal significance?” he asked.

The Solicitor General responded that the panel considered the event significant because the panel and the MILF had agreed on points to discuss, and there was confidence generated by the agreement to sit down and talk.

Candelaria also said that the presence of foreign diplomats in the aborted MOA signing was a mere indication that the international community was interested in peace.

Later in the afternoon, during questioning by Justice Eduardo Nachura, Devanadera said the panel had the authority to sign the MOA. What it could not sign was a final peace agreement, she said.

MOA set aside

Puno seized on Devanadera’s statement that the MOA would not now be signed “in any other form” noting that this was a “significant” change from the Executive’s earlier stand that the agreement would not be signed “in its present form.”

“Why are there many versions of the actions of the President? Why is its language changing?” Puno asked.

He asked what the difference was between the MOA not being signed in its present form and not being signed in any other form.

Devanadera explained that when the Executive said that the agreement would not be signed in its present form, it was observed that it could be signed in another form after the hearings were terminated. To make clear the Executive’s stand, the official stand was made that the MOA would not be signed, she said.

“No matter what the SC decides, the government will not sign MOA,” she added.

Puno asked if it can be said that the MOA has been set aside.

“Since it won’t be signed, it has been set aside, but not the peace process,” Devanadera replied.
Deviation from traditional mode

The Chief Justice also inquired what model the MOA was derived from and who recommended it. He pointed out that the traditional model, which the government used in dealing with the Moro National Liberation Front, was first amending or including constitutional provisions on the law governing the Autonomous Region in Muslim Mindanao and then having Congress enact the necessary implementing laws.

He said that with the MOA, the government had deviated from the traditional mode and this was the reason why the agreement became controversial.

“This MOA is hardly recognizable international law and standards. We can’t even reach a proper characterization,” Puno said.

Devanadera said that in her “very personal opinion,” and being a conservative, she would have opted for the traditional model although she said she does not discount that other modes were worthy of being looked into.

First Nation

The other justices focused on the possible scenarios that might arise from the interpretation of the provisions of the MOA.

Justice Leonardo Quisumbing pointed out that other parties consider the MOA a done deal and are poised to take over the territories mentioned in the agreement.

Justice Dante Tinga inquired whether the “Bangsamoro” should be regarded as an indigenous people on the basis of their religion, and if the government panel considered scientific, historical and legal bases for recognizing the Muslims of Mindanao as an indigenous people or community.

Devanadera admitted that the Bangsamoro were not recognized as an indigenous people under the Indigenous Peoples Rights Act but that this recognition was granted in the organic acts passed by Congress for the Autonomous Region in Muslim Mindanao.

Carpio hinted at the impropriety of the use of the term “First Nation”—a term used to refer to the aboriginal peoples of Australia, New Zealand and Canada— in the MOA to describe the Bangsamoro.

He said this would mean there was a “subsequent nation” which in the case of the three former British colonies was the white settlers. However, in the Philippines, it is considered that all Filipinos are members of the Malay race, he said.

Devanadera said the term was used in a “very loose sense.”

Tinga also observed that the MOA seemed to have made the MILF as “possessing some sort of limited international personality” similar to that of the Palestinian Liberal Organization when it signed a peace agreement with the Israeli government.

Devanadera stressed that was never the intent of the government. She said that the personality of the MILF as a rebel group, as regarded by the government, did not change in all the stages of the peace process.

If the goals of the final agreement are fulfilled, the MILF would be reintegrated into the mainstream Philippine society and would even be considered part of the national government, but never a nonstate entity or a state-in-the-making under international law, she said.

Justice Minita Chico Nazario asked Devadanera what her personal opinion was on how the government should have proceeded with the negotiations for the MOA.

Devanadera said that when she was mayor of Sampaloc town in Quezon province and had to deal with communist rebels, she organized local peace talks which required that the rebels lay down their arms, have them sit down in good faith and not cry for the moon and the stars, and make them contemplate eventual reintegration with society.