Questions on the MOA-AD decision

LAST Sunday’s column on the Supreme Court’s MOA-AD decision drew piercing questions, many of them from diplomats like my friend Ambassador Herbert Jager, a noted lawyer in his native Austria. Today, I will answer three. Essentially, the Court held that negotiators should strictly follow their mandates and that peace agreements should conform to our Constitution and laws.

So the first question is: Does this mean that negotiators cannot take up matters that require changes in our Charter and statutes? Can’t they be creative and “think outside the box” to find bold solutions to stubborn, age-old problems?

Answer: Negotiators are mere agents of the President. Hence, they cannot have more powers than their principal. The Philippines is governed by the rule of law, not by the whim or caprice of any person, however exalted, noble or well-intentioned. The bedrock of the rule of law is the Constitution. No one may violate, ignore or circumvent it at any time and for any reason. Yes, it may be changed or amended but only by observing the processes that are imbedded in the Constitution itself.

Negotiators may discuss matters outside the Constitution and the laws. They may even believe that the way to peace impels changes in our basic law. Nonetheless, they do not have the authority to sign any covenant that offends the Charter. All they can commit is that they would propose to the proper authorities the constitutional or legal changes desired. They may “think outside the box” but they cannot act outside of it on their own.

In his concurring opinion, Chief Justice Reynato S. Puno stressed that the Peace Agreement of 1996 with the Moro National Liberation Front (MNLF)—not to be confused with the Moro Islamic Liberation Front (MILF)—succeeded “because it respected the metes and bounds of the Constitution […]. Without ifs and buts, its Whereas Clauses affirmed our sovereignty and territorial integrity and completely respected our Constitution.”

Peace panels should realize that agreements have international consequences that could be enforced by international tribunals. National constitutions or laws do not bind international bodies. Hence, negotiators should be extra careful in crafting the language of these accords lest they defile their mandates and become traitors to the very cause they are supposed to espouse.

Second question: By striking down the MOA-AD, did the Supreme Court (and the President who cancelled it and dissolved the government peace panel) violate the right to self-determination of the Bangsamoro people? The right to self-determination is now considered a “generally accepted principle of international law” that Sec. 2 of Art. II of the Constitution “adopts […] as part of the law of the land.” Under this right, the people “may freely determine their political status and freely pursue their economic, social and cultural development.”

However, our Supreme Court ruled that this right is “fulfilled through internal self-determination—a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state.” In short, the right excludes secession from—and respects—the territorial integrity of existing states, like the Philippines.

Citing the Canadian Supreme Court, our highest tribunal said that the right to external self-determination or to political independence arises only when the people are under colonial rule or subjected to foreign domination. Since the Bangsamoros are not colonials and are moreover adequately represented in various echelons of the government, the botching of the MOA-AD had not violated their right to self-determination.

The third question: Was the vote 8-7 or 12-3? Answer: There were two major issues. The “procedural” issue of mootness was voted 8-7. The opinions on the “substantive” issue of unconstitutionality were divided 12-3. However, the “legalistic” way to determine the winning party is to count the number of justices who “granted” or “dismissed (or denied)” the petitions. On this basis, the score was 8-7. This “disposition” is normally found at the end of the decision and usually begins with the word “Wherefore.”

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Update. Sometime ago, I predicted that proposals to amend the Constitution would soon pop up in various guises to test whether the two houses of Congress should meet and vote “separately or jointly” when proposing constitutional revisions. In this connection, the Supreme Court recently dismissed “for being premature” a petition of Rep. Adam Relson Jala questioning the constitutionality of House Resolution 730 calling for a constituent assembly to revise the Constitution.

Pending in the House Committee on Constitutional Amendments are 28 Charter change proposals. Of these, the resolution authored by Speaker Prospero Nograles lifting the 40-percent limit on foreign ownership of certain investments has reportedly been signed by over 160 congressmen. Currently, there are 238 representatives and 23 senators or a total of 261 legislators from both houses. Three-fourths of 261 is 196. In a “joint” vote, these 196 signatures are allegedly enough to comply with the Constitution.

Should this proposal obtain 196 signatures, expect a test case to be immediately filed in the high court insisting that the signatures of 196 solons, even sans any senator, are sufficient for the Comelec to call a plebiscite to revise the Charter. Then, watch the parliamentary Con-ass zoom off.

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