MANILA, Philippines—The memorandum of agreement on ancestral domain (MOA-AD) between the government and a Moro separatist rebel group is illegal and unconstitutional, and the process that led to its crafting was “whimsical, capricious, oppressive, arbitrary and despotic,” the Supreme Court declared Tuesday.

Voting 8-7 on the petition of officials of North Cotabato, Iligan City and Zamboanga City, the high court stopped Presidential Adviser on the Peace Process Hermogenes Esperon and the government panel from signing and executing the agreement that laid the foundation for the creation of an expanded Bangsamoro homeland in Mindanao.

It described the agreement as “contrary to law and the Constitution,” and called for public consultations in accordance with the right to information with respect to any further peace agreement with the Moro Islamic Liberation Front (MILF).

“The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise,” the Supreme Court said in the 90-page decision written by Justice Conchita Carpio Morales.

The high court’s earlier temporary restraining order on the signing of the agreement in Kuala Lumpur is widely seen to have triggered the attacks by rogue MILF commanders on civilians in certain parts of Mindanao.

The attacks as well as the resulting skirmishes between government and MILF troops have displaced tens of thousands of families, who continue to crowd squalid evacuation camps. The civilian death toll has reached almost 100.

Abuse of discretion

The high court chided the presidential adviser on the peace process for committing “grave abuse of discretion when he failed to carry out the pertinent consultation process” in connection with the provisions of the agreement.

“The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely the associative relationship between the [government] and the Bangsamoro Juridical Entity,” the high court said, adding:

“[For] the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.”

The high court also said the provisions in the agreement for establishing an associative relationship between the Bangsamoro Juridical Entity (BJE) and the government “virtually guarantee that the necessary amendments to the Constitution and laws will eventually be put in place.”

“Neither the [government] peace panel nor the President herself is authorized to make such a guarantee,” the high court said.

“Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a constitutional convention or the people themselves through the initiative process, for the only way that the executive can ensure the outcome of the amendment process is through an undue influence or interference with that process,” it added.

No authority

It 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.

The high court also dismissed the plea of the respondents (Esperon and the government peace panel) to dismiss the petition on grounds that the President had said the government would no longer sign the agreement in whatever form.

It pointed out that the controversy involving the document may be repeated: “[The] present petitions provide an exception to the moot and academic rule in view of the grave violation of the Constitution involved; the exceptional character of the situation and paramount public interest; the need to formulate controlling principles to guide the bench, the bar and the public; and the fact that the case is capable of repetition yet evading review.”

How they voted

Those who concurred with the decision were Chief Justice Reynato Puno and Justices Consuelo Ynares-Santiago, Antonio Carpio, Adolfo Azcuna and Ruben Reyes (who all issued separate opinions) and Senior Justice Leonardo Quisumbing and Justice Maria Alicia Austria Martinez.

Justices Dante Tinga, Minita Chico-Nazario, Presbiterio Velasco, Antonio Eduardo Nachura, Teresita Leonardo-De Castro and Arturo Brion wrote dissenting opinions. Justice Renato Corona joined Tinga’s dissent.

In his concurring opinion, the Chief Justice said peace negotiations should not violate “the parameters of powers marked in the Constitution.”

Puno 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."

“For even in times of war, our system of checks and balances cannot be infringed. More so in times where the only danger that faces the state is the lesser danger of rebellion,” Puno said.

He also scolded the government peace negotiators for 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.

Affirming authenticity

In voting to dismiss the petition on the ground of mootness presented by the government, Tinga said: “The successful outcome of negotiation of international agreements is the adoption and authentication of the agreed text.”

“The initialing of the agreement reflects only the affirmation by the negotiating agents that the text of the prospective agreement is authentic,” he added, countering the MILF position that the government was bound by the agreement because its negotiators had already “initialed” the document.

Tinga, however, recognized the unconstitutionality of the agreement, saying it gave powers to the BJE that were “reserved under the Constitution to the state.”

“Nothing prevents Congress from amending or reenacting an Organic Act providing for an autonomous region for Muslim Mindanao,” Tinga said.

“Nonetheless, the paramount requirement remains that any Organic Act providing for autonomy in Mindanao must be in line with the Constitution,” he said.

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

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 and a part of Palawan province would be included in the proposed 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.