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Stronger than it looks

October 16, 2008 01:43:00
Philippine Daily Inquirer

The Supreme Court ruling that found the controversial Memorandum of Agreement on Ancestral Domain (MOA-AD) with the Moro Islamic Liberation Front unconstitutional may have been decided by one vote, 8-7, but the finding is actually stronger, more categorical, than it looks.

In the first place, the decision directly addresses the twin concerns around which public opinion on the MOA-AD had revolved. On Aug. 15, this newspaper found the occasion to sum up those concerns: The MOA-AD, our editorial ran, was “controversial mainly for its content and for the lack of consultation that characterized its crafting.”

The closely argued majority decision, written by Justice Conchita Carpio Morales, tore into the document’s content. “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 [proposed] Bangsamoro Juridical Entity.”

The decision also settled any doubts about the fatal lack of consultation: “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.”

Secondly, and even more important, in terms of signaling to the Moro Islamic Liberation Front (MILF) or any other organization the judiciary’s resolve in defending the Constitution, most of the separate and dissenting opinions largely follow the same arguments against the MOA-AD’s content or lack of consultation.

In other words, the justices who voted against did not necessarily find the MOA-AD constitutional, but only that the case had become moot and academic—“in light of the pronouncement of the Executive Department to already abandon the MOA-AD,” as Justice Minita Chico-Nazario phrased it in her separate opinion.

Justice Dante Tinga’s strongly argued dissenting opinion, in which he was joined by Justice Renato Corona, makes the point explicit. To declare the case moot and academic is not to find the subject of the case itself constitutional. A key paragraph from an “earlier submission to the Court” that he said he had filed (possibly an internal memorandum during the deliberations on the case) is worth publishing in full.

“There is the danger that if the petitions were dismissed for mootness without additional comment, it will be advocated by persons so interested as to make the argument that the intrinsic validity of the MOA-AD provisions has been tacitly affirmed by the Court. Moreover, the unqualified dismissal of the petitions for mootness will not preclude the MILF from presenting the claim that the MOA-AD has indeed already been signed and is therefore binding on the Philippine government. These concerns would especially be critical if either argument is later presented before an international tribunal, that would look to the present ruling of this Court as the main authority on the status of the MOA-AD under Philippine internal law.”

Precisely to remove any possibility of confusion, Tinga provided “additional comment,” including this thumping conclusion: “The position of the MILF that the MOA-AD already creates binding obligations imposable on the government cannot ultimately be sustained, even assuming that the initialing of the document had such binding effect. That position of the MILF supposes that the provisions of the MOA-AD are intrinsically valid under Philippine law. It takes no inquiry at great depth to be enlightened that the MOA-AD is incongruous with the Philippine Constitution.” In the original, that last line is in boldface.

Additional comments from other justices are in the same vein. Thus, Justice Teresita Leonardo-De Castro: “Even with the participation of Congress and the consultation with stakeholders, the process at the onset must conform and explicitly be subject to our Constitution.” And thus, Chico-Nazario: “Transparency and consultation with all major players, which necessarily include affected local government units and their constituents [the petitioners in this case], are essential to arrive at a more viable and acceptable peace plan.”

In sum, the position of the Supreme Court on the MOA-AD seems exactly the same as that of the republic when it realized the sudden possibility of dismemberment: stronger than it looks.

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