Victory for the Constitution

TO delineate “the extent of the powers of the President in pursuing the peace process” (bold types in the original) sums up the raison d’etre of the Supreme Court in “North Cotabato vs Government” (Oct. 14, 2008) declaring unconstitutional the scuttled Memorandum of Agreement on Ancestral Domain (MOA-AD) with the Moro Islamic Liberation Front.

Strict adherence to Constitution. The Court explained that while the “facts surrounding this controversy center on the armed conflict in Mindanao,” the principles and doctrines enunciated in the judgment should guide peace talks “in all areas in the country where there has been a long standing armed conflict.”

The bottom line in all negotiations and agreements is “strict adherence to the Constitution” and the laws. So the Court firmly ruled, not by the narrow 8-7 vote reported by media but by a compelling majority of at least 12-3, as I will discuss later.

Elegant, well researched and well cadenced, the 89-page ponencia, written by Justice Conchita Carpio Morales rhapsodized on the “splendid symmetry” between the people’s right to information and the correlative “duty of officialdom to give information even if nobody demands.” Thus, the peace negotiators were duty-bound to consult the petitioners and the people affected by the MOA-AD before making any agreements that adversely affect them.

More glaring than lack of consultation are the patent constitutional violations. In his concurring opinion, Justice Antonio T. Carpio listed 36 provisions of the Constitution that the MOA-AD rammed. The Court held that the peace panel’s commitment to revise these provisions was beyond the authority not only of the panel but also of President Macapagal-Arroyo herself.

Indeed, in the three modes of changing the Constitution, the President does not take part. Only Congress can call a constituent assembly or a constitutional convention, and only the voters can amend the Charter via a people’s initiative. How then can she, much less her negotiators, commit to alter the Constitution to accommodate the MILF’s demands?

The Morales ponencia took up the novel international law concept of “association.” It said that the MOA-AD “clearly uses it to describe the envisioned relations between the Bangsamoro Juridical Entity and the Central Government.” Under this “associative relationship,” the BJE would be given powers “to enter into economic and trade relations with foreign countries … participate in meetings and events in the Asean and specialized UN agencies” and perform other sovereign acts. Such relationship confers the status of an independent state on the BJE, a “concept not recognized by our Constitution.”

Moot and unconstitutional. The dissenters argued that the petitions should be dismissed because President Arroyo had already cancelled the MOA-AD. Thus, there was nothing more for the Supreme Court to rule on and to declare unconstitutional.

Nevertheless, they did not say that the MOA-AD was constitutional. All they said was that it was superfluous to rule on the issue of constitutionality. True, Justice Dante O. Tinga’s separate opinion—joined by Justice Renato Corona—disagreed with “the result reached by the majority.” But it conceded that “the MOA-AD is incongruous with the Philippine Constitution.”

Although Justice Minita V. Chico-Nazario went for mootness, she also reminded the Executive Department that “transparency and consultation—are essential to arrive at a more viable and acceptable peace plan.” Similarly, Justice Teresita Leonardo de Castro ruled the “case moot and academic,” but held it “beyond the authority of any negotiating panel to commit the implementation of any consensus point or legal framework which is inconsistent with the present Constitution or existing statute.”

This stance of “moot and unconstitutional” finds basis in Salonga vs Pano (Feb. 18, 1985) and Javier vs Comelec (Sept. 22, 1986) in which the Court unanimously said that, had there been no supervening events mooting the petitions, it would have ruled unconstitutional the assailed government actions.

This is why in the beginning, I wrote that there are more than eight justices who believe that the MOA-AD is unconstitutional except that the four disposed narrowly; they “dismissed” the petitions due to mootness, not “granted” them due to unconstitutionality as the majority did. This legalistic disagreement does not diminish their shared view that the MOA-AD desecrates the Charter.

The real victors. I should like to believe that the real winners in this landmark cases are not just the petitioners but equally so, the people who cherish the primacy of the Constitution and the rule of law. Likewise, the government should accept the decision more as a blessing, less as a defeat. It should be thankful to the Court for stopping a detestable agreement and for crafting valuable tools to guide future peace talks.

To sum up, no justice disputed the ponencia’s thesis that negotiators should strictly follow their mandates and that peace agreements should conform to our Constitution and laws. The minority wanted the Court to rule narrowly. But the majority opted to be more liberal and patriotic: to teach the government that there is a right way to do the right thing (i.e., negotiate for peace) at the right time and for the right reason. Cheers to the Court!

And hail too to the lawyers. Their memoranda, especially that of Meilou Sereno, Sen. Frank Drilon’s counsel, were enlightening and riveting.

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