QUEZON CITY (MindaNews/7 Sept) – This is the first of a series of columns that anticipate a peace agreement between the Moro Islamic Liberation Front (MILF) and the Government of the Republic of the Philippines. With a settlement looming, it would be a good exercise to remember the lessons learned from the fiasco of the Memorandum of Agreement on Ancestral Domain (MOA-AD). The constitutionality of the MOA-AD was assailed before the Supreme Court which then struck it down as unconstitutional.
Under the MOA-AD, the Bangsamoro Juridical Entity (BJE) had authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro, which core is defined as the present geographic area of the ARMM, which means, the areas of Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Included in this were municipalities and barangays under Lanao del Norte, North Cotabato, and Zamboanga and Iligan Cities that voted for inclusion in the ARMM in the 2001 plebiscite.
As to local governance, the relationship between the Central Government and the BJE was that of “association” with shared authority and responsibility. This relationship based on the MOA-AD, however, requires an amendment of our current legal framework. Much of the present controversy revolved around this issue.
In the case, the Respondents argued that the policy of public disclosure needs an implementing law in order to be enforceable. The Court, however, said that this cannot be because such policy comes hand in hand with the right to information which “is a recognition of the fundamental role of free exchange of information in a democracy.” Further, the Court said, “An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people’s will.”
Corollary to this, E.O. 3 commands the participation of civil society by enhancing the people’s participation. Thus, it provides for the mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process.
The Court ruled that “the PAPP committed grave abuse of discretion when he (Gen. Esperon) failed to carry out the pertinent 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 thereof.”
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), the Court held “(MOA-AD) failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act, which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs. The IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.”
The provisions of the MOA-AD aimed at vesting BJE the status of an associated state, a concept that is not recognized under our present Constitution. It runs counter to the national sovereignty and territorial integrity of the Republic.
Apart from being irreconcilable with the Constitution, such provision also contravenes R.A. No. 9054 or the Organic Act of the ARMM. Said Organic Act clearly delineates the terms “Bangsamoro” and “Indigenous People” as separate and different from each other. The MOA-AD lumped the two as one and the same.
Likewise put into question, was the President’s power to conduct peace negotiations. Petitioners argued that such power was not explicitly mentioned in the Constitution. The Court held “the President’s power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.”
What can we learn from the MOA-AD case? How can we rectify the premises of the past administration? Whether or not it was done in good faith, the fact remains that there was a lack of public consultation or that the public was not consulted insofar as the substantive issues of the agreement are concerned.
While the government believes that a plebiscite is more than sufficient consultation, it does not in itself suffice the requirement for a public consultation that entails a deeper and more detailed dialogue with the sectors that will be primarily affected once the MOA-AD is implemented. In a plebiscite, people will only have to vote on a specific issue, affirming or negating a proposition presented before them. What is contemplated by our law, specifically E.O. 3, is that there be an open public consultation, an essential element of a free and democratic country like the Philippines.
This means that everyone, not only public officials but also private businesses and community-based organizations, should take part in identifying possible solutions to the problem. As the Court put it, “One of the three underlying principles of the comprehensive peace process is that it should be community-based, reflecting the sentiments, values and principles important to all Filipinos and shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community.” That the public should be consulted on the peace agenda is not only a legal act but an act of justice itself.
Furthermore, in terms of amending the Constitution, the government actually exceeded its authority when it allowed provisions in the MOA-AD signifying amendments to the existing legal framework. In its defense, the government said that the unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well as constitutional processes aimed at attaining a final peaceful agreement.
The President is duty-bound to uphold the law and the Constitution. He/she must strictly and faithfully adhere to it like a protector of the laws of the land. Therefore, as the Court held, “when an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.” As in the present controversy, an overt act is not necessary. A singular violation of the law is enough to alert judicial duty.
By and large, it must be said that there is no other way to settle this Mindanao dispute than by going the proper legal route. No matter how good the intent may be, a questioned law in the risk of seriously violating the Constitution and/or any law, for that matter, will always have to be struck down before the Supreme Court which has the supreme duty of applying the laws of the land. (MindaViews is the opinion section of MindaNews. Dean Tony La Viña is a human rights and environmental lawyer from Cagayan de Oro City. He was a member of the Government of the Philippines Peace Panel that negotiated with the MILF from January-June 2010. He is currently the Dean of the Ateneo School of Government. Dean Tony can be reached at [email protected] Follow him on Facebook: [email protected] and on Twitter: tonylavs.)