Supreme Court Split 8-7 on MOA-AD

Almost all of the participating Justices wrote Separate Opinions on this case. Even ahead of those doubtless erudite disquisitions being available online, the following rather detailed COURT NEWS FLASH has arrived by email from the Public Information Office of the the Supreme Court.

SC Declares MOA-AD Unconstitutional
Posted: October 14, 2008
By Jay B. Rempillo

The Supreme Court, voting 8-7, today declared “contrary to law and the Constitution” the Memorandum of Agreement on the Ancestral Domain Aspect (MOA-AD) of the Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Tripoli Agreement on Peace of 2001.

In a 89-page decision penned by Justice Conchita Carpio Morales, the Court, granting the main and intervening petitions, enjoined the respondents and their agents from signing and executing the MOA-AD or similar agreements. Likewise, they were directed to conduct public consultations in accordance with the right to information, with respect to any further peace negotiations with the MILF.

“In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by EO No. 3, RA 7160, and RA 8371. 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 thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined,” the Court said.

Chief Justice Reynato S. Puno, Justice Consuelo Ynares-Santiago, Justice Antonio T. Carpio, Justice Adolfo S. Azcuna, and Justice Ruben T. Reyes, joining the majority vote, all wrote separate opinions. Also joining the majority are Senior Justice Leonardo A. Quisumbing and Justice Ma. Alicia Austria-Martinez.

Those who voted for the dismissal of the petition and wrote dissenting opinions are Justice Dante O. Tinga, Justice Minita V. Chico-Nazario, Justice Presbitero J. Velasco Jr., Justice Antonio Eduardo B. Nachura, Justice Teresita J. Leonardo-de Castro, and Justice Arturo D. Brion. Justice Renato C. Corona joined Justice Tinga’s dissent.

The Court held that respondents’ failure to consult the local government units or communities constitutes a departure by respondents from their mandate under EO No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. EO No. 3 defines the authority of the GRP Negotiating panel.

The contents of the MOA-AD are matters of paramount public concern involving public interest in the highest order, the Court stressed.

The Court stressed that 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 envisioned between the GRP and the BJE (Bangsamoro Juridical Entity), are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence, it said.

The Court noted that inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions from the President dated March 1, 2001, addressed to the government peace panel. Moreover, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. 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 process of initiative, 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

The Court added that while the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, the respondents’ act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective.

The Court denied the respondents’ motion to dismiss the petitions on the ground that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions. It ruled that the present petitions provide an exception to the “moot and academic” principle in view of (1) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar and the public; and (d) the fact that the case is capable of repetition yet evading review.

The Court noted that the MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar of significantly dissimilar provisions compared to the original.

The Court, however, found that the prayers for mandamus have been rendered moot in view of the respondents’ action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.

The Court said that the people’s right to information on matters of public concern under sec. 7, Art. III of the Constitution “is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under sec. 28, Art. II of the Constitution.” The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law.

The Court explained that at least three pertinent laws justify the exercise of the people’s right to be consulted on relevant matters relating to the peace agenda:

One, EO No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building;

Two, RA 7160 (the Local Government Code of 1991) requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment; and

Three, RA 8371 (the Indigenous Peoples Rights Act of 1997) provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples.

The Court also held that invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable.

In his separate opinion, Chief Justice Puno wrote that “the President as Chief Executive can negotiate peace with the MILF but it is peace that will insure that our laws are faithfully executed. 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…Needless to stress, the power of the President to negotiate with the MILF is not plenary. While a considerable degree of flexibility and breadth is accorded to the peace negotiating panel, the latitude has its limits – the Constitution. The Constitution was ordained by the sovereign people and its postulates may not be employed as bargaining chips without their prior consent.” He observed that “during the whole process, the government peace negotiators conducted themselves free from the strictures of the Constitution.” He added that “respondents’ thesis of violate now, validate later makes a burlesque of the Constitution.”

Justice Santiago said, among others, that the MOA-AD “contains provisions which are repugnant to the Constitution and which will result in the virtual surrender of part of the Philippines’ territorial sovereignty.” She further said that had the MOA-AD been signed by parties, “would have bound the government to the creation of a separate Bangsamoro state having its own territory, government, civil institutions, and armed forces…The sovereignty and territorial integrity of the Philippines would have been compromised.”

Justice Carpio said that “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. The constitutional power of Congress to propose amendments to the Constitution, and 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.”

Justice Azcuna agreed with the ponencia but held that had the MOA-AD been signed it would have provided a basis for a claim in an international court that the Philippines was bound by its terms at the very least as a unilateral declaration made before representatives of the international community with the vital interests in the region. Citing Martin Dixon and Robert McCorquodale, Justice Azcuna stated that unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking. Such undertaking, if given publicly, and with an intent to be bound is binding upon the parties.
Justice Reyes said that the MOA-AD was unconstitutional stressing that the negotiating panel of the Philippine Government (GRP) “went beyond their marching orders from the President” as the commitment of the GRP to the MILF to change the Constitution in order to conform to the MOA-AD violated the doctrine of separation of powers. Justice Reyes, citing the defects of the MOA-AD, stated that respondents appear to have committed grave abuse of discretion in negotiating and initialing the MOA-AD.
Justice Tinga, who voted to dismiss the petitions on the ground of mootness, said that the fact that the Philippine government has not yet consented to be bound by the MOA-AD, as asserted by the MILF because its draft agreement had been “initialed” by the representatives of the Philippine and Malaysian governments and the MILF, is indubitable, as “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.”
Justice Tinga nonetheless went into a discussion as to the intrinsic validity of the MOA-AD. He opined that the MOA-AD was incongruous to the Philippine Constitution. “Nothing prevents Congress from amending or reenacting an Organic Act providing for an autonomous region for Muslim Mindanao…Nonetheless, the paramount requirement remains that any organic act providing for autonomy in Mindanao must be in alignment with the Constitution.” He cited provisions of the MOA-AD which were extra-constitutional and diminish national sovereignty as they allocate to the Bangsamoro Juridical Entity powers and prerogatives reserved under the Constitution to the State.
Justice Nazario deemed it beyond the power of the Court to stop the Executive Department from entering into agreements similar to the MOA in the future. “Upon the Executive Department falls the indisputably difficult responsibility of diffusing the highly volatile situation in Mindanao resulting from the continued clashes between the Philippine military and Muslim rebel groups. In negotiating for peace, the Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means.”
Justice Velasco said that “favorably accommodating the petitioners under the premises cannot but be viewed as an indirect attempt on the part of the Court to control and dictate on the peace prerogatives of the executive branch, and in the process unduly impairing that branch in the performance of its constitutional duties. It will distort the delicate balance of governance which the separation of powers seeks to safeguard.”

Justice Nachura said that “with an abandoned and unsigned MOA-AD and a dissolved peace Panel, any purported controversy has virtually disappeared. Judicial review cannot be exercised where the incipient actual controversy does not remain extant until the termination of the case; this Court cannot provide reliefs for controversies that are no longer there.” He added that “the Court cannot review an inexistent agreement, an unborn contract that does not purport to create rights or impose duties that are legally demandable. Neither will the remedy of prohibition lie against a GRP Peace Panel that no longer exists. To do so would be to flog a dead horse.”

Justice Leonardo-De Castro opined that the detailed analysis of each the stipulations contained in the MOA-AD was rendered unnecessary due to the Memorandum filed by the Office of the Solicitor General repeatedly and categorically stating that the agreement “will not be signed in its present form or in any form.” Such development has rendered the case moot and academic.
Justice Brion stated that the application of the exceptions to the mootness principle should be subjected to “a strict test because it is a deviation from the general rule.” He stressed that after the respondents declared that the MOA-AD would not be signed there was nothing left to prohibit and no rights on the part of the petitioners continued to be at risk of violation by the agreement. He concluded that the circumstances negated the existence of grave abuse of discretion that justifies the grant of a writ of prohibition, and voted to dismiss the consolidated petitions. (GR Nos. 183591, 183572, 183893, and 183951, The Province of North Cotabato v. Republic, October 14, 2008)