MANILA, Philippines—The presidential peace adviser and the government negotiating panel “played fast and loose with the do’s and don’t’s of the Constitution” when they crafted the agreement with the Moro Islamic Liberation Front (MILF) expanding the Bangsamoro homeland, according to Chief Justice Reynato Puno.
In his opinion concurring with the Supreme Court majority decision rejecting the memorandum of agreement on ancestral domain (MOA-AD), Puno said: “During the whole process, the government peace negotiators conducted themselves free from the strictures of the Constitution.”
The Supreme Court on Tuesday voted 8-7 to find the MOA-AD “contrary to law and the Constitution” with its provisions on the creation of the Bangsamoro Juridical Entity (BJE).
“[Under the agreement) the BJE is granted powers of governance which it can exercise without need of amendments to be made to the Constitution or existing law or without imposing any condition whatsoever,” Puno said.
He added: “No one can claim he has a blank check to violate the Constitution in advance and the privilege to cure the violation later through an amendment of its provisions.
“Respondents’ thesis of violate now, validate later makes a burlesque of the Constitution.”
Justice Antonio Carpio, in his own separate concurring opinion, said the executive branch took on the powers of Congress and the people when it committed the constitutional amendments to pave the way for the agreement’s implementation.
“[Any] peace agreement that calls for amendments to the Constitution—whatever the amendments may be, including the creation of the BJE—must be subject to the constitutional and legal processes of the Philippines,” Carpio said.
He said the constitutional power of the people to approve or disapprove such amendments “can never be disregarded.”
“The executive branch cannot usurp such discretionary sovereign powers of Congress and the people, as the executive branch did when it committed to amend the Constitution to conform to the MOA-AD,” he added.
Saying there was nothing to be ashamed of, Malacańang Wednesday said it would not ask the Supreme Court to reconsider its ruling.
Executive Secretary Eduardo Ermita said government lawyers would just file a manifestation stating that “the things contained in the decision [had been] actually happening already even before the decision was reached” by the high court.
He was referring to the government’s policy shift in dealing with insurgents, focusing now on community dialogue and the disarmament, demobilization and reintegration of rebels.
While all but conceding defeat over the MOA-AD, Ermita sought to insulate both Ms Arroyo and Presidential Peace Adviser Hermogenes Esperon from the unfavorable ruling.
If at all, he said, the decision should remind government negotiators in the future to “follow the instructions of the President.”
Ermita cited Ms Arroyo’s memoranda of instruction on March 1, 2001, and Sept. 8, 2003, which both stated: “Negotiations shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the principles of the sovereignty and territorial integrity of the Republic of the Philippines.”
He told reporters: “The Supreme Court correctly made the observation that the President had enough guidance as to how the talks should be done.”
And for all that, Esperon still enjoys the “trust and confidence” of Ms Arroyo, Ermita said, adding:
“The Presidential Adviser on the Peace Process acts in good faith, and he always has in his mind the need to find a final solution to the conflict in the South.”
On the phone from the United States, Sen. Joker Arroyo pointed out that the high court’s ruling practically rested on one vote, and that “a change of one vote changes the picture.”
Arroyo noted that the tribunal was “sharply divided” on the issue of an expanded Bangsamoro homeland.
“For a decision with such far-reaching consequences, the high court was sharply divided, 8-7, and it could pose more problems in the future,” he said.
“A change of one vote would make the minority opinion the majority decision, and conversely, the minority decision would become a dissenting opinion.”
“Rarely” has this happened, he added.
Arroyo also said the US government had implicitly supported the MOA-AD.
“It should be stated that the act that the Supreme Court has declared unconstitutional had the indirect encouragement and blessings of the US. This is attested to by the joint statement titled ‘Fixing Mindanao,’ released by the immediate seven former US ambassadors to the Philippines,” he said.
Arroyo was referring to the statement that appeared on the Sept. 30, 2008, issue of the Asian Wall Street Journal, which was in support of the MOA-AD.
The statement, which appeared as an opinion piece, was jointly written by former US Ambassadors Stephen Bosworth, Thomas Hubbard, Richard Murphy, Nicholas Platt, Francis Ricciardone, Richard Solomon and Frank Wisner, along with US officials Chester Crocker and Eugene Martin, and Astrid Tuminez, senior research associate of the US Institute of Peace Philippine Facilitation Project.
