Wednesday, October 15, 2008 Homeland deal declared unconstitutional
THE Supreme Court (SC) ruled Tuesday that the proposed homeland deal to grant expanded autonomy to minority Muslims under the Bangsamoro Juridical Entity (BJE) patently violated the Constitution.
The high court ruled to declare unconstitutional the memorandum of agreement on ancestral domain (MOA-AD), which would have provided for the creation of the BJE that will oversee the new Moro ancestral domain.
Under the said agreement, the BJE can create its own judicial system and police forces and can enter into economic agreements and establish trade relations with other countries.
The SC granted the main and intervening petitions enjoining respondents Executive Secretary Eduardo Ermita, the government peace panel, and presidential peace adviser Hermogenes Esperon Jr. signing and executing the MOA-AD or similar agreements.
The respondents, however, are directed to conduct public consultation in accordance with the right to information, with respect to any further peace negotiations with the MILF.
"The statute 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 court said.
Eight of the justices ruled that the non-signing of the MOA-AD and the eventual dissolution of the government peace panel did not moot the present petitions, pointing out that the signing of the pact was aborted due to the court's issuance of a temporary restraining order.
Concurring in the decision were Chief Justice Reynato Puno and Associate Justices Consuelo Ynares-Santiago, Antonio Carpio, Adolfo Azcuna, Ruben Reyes, Leonardo Quisumbing and Ma. Alicia Austria-Martinez.
Seven justices voted to dismiss the petitions on the ground of being moot since the executive department already decided not to sign the MOA in its present form or in any other form.
The dissenters were Associate Justices Dante Tinga, Renato Corona, Minita Chico-Nazario, Presbiterio Velasco Jr., Antonio Eduardo Nachura, Teresita Leonardo-de Castro and Arturo Brion.
The majority ruling stated the government cannot use the fact that the case had been rendered moot and academic as a "magic formula that automatically dissuades courts in resolving a case."
Moot and academic
They said the SC may still decide cases otherwise moot and academic if it finds that there is a grave violation of the Constitution, if the situation is of exceptional character and paramount public interest is involved, the constitutional issue raised requires formulation of controlling principles and the case is capable of repetition yet evading review
Esperon, according to the court, committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by law, in areas who would be directly affected by the creation of the BJE.
It said the invocation of the doctrine of executive privilege as a defense to the general right to information of the specific right to consultation is "untenable."
"The various explicit legal provisions fly in the fact of executive secrecy... 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 a positive duty and a virtual refusal to perform the duty enjoined," the court ruled.
It added that the peace pact cannot be reconciled with the Constitution and the laws, given that the "associative relationship envisioned between the government panel and the BJE are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence."
The tribunal ruled that the 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 instruction from President Gloria Macapagal-Arroyo dated March 1, 2001, addressed to the government panel.
The SC explained that while there is a clause in the MOA-AD stating the provisions, which are inconsistent with the present constitution, legal framework will not be effective until the charter is amended, "the same does not cure its defect."
However, the court said neither the government panel nor the President herself is authorized to make such a guarantee, as such power is vested in Congress, a constitutional convention or the people themselves through the process of initiative.
The high court added that while the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents' act of guaranteeing amendments is by itself, already a constitutional violation that renders the agreement "fatally defective."
Moreover, it said the proposed BJE under the MOA-AD "runs counter to the national sovereignty and territorial integrity of the Republic."
"The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. It is not merely an expanded version of the Autonomous Region in Muslim Mindanao (Armm), the status of its relationship with the National Government being fundamentally different from that of the Armm. Indeed, the BJE is a state in all but name as it meets the criteria of a state," said the SC.
The case is a consolidation of five petitions filed by North Cotabato Province; Zamboanga City; Iligan City; Zamboanga del Norte; Sultan Kudarat; Isabela City; Basilan Province; Municipality of Linamon; Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III; Franklin Drilon and Adel Tamano; Senator Manuel Roxas; and indigenous peoples in Mindanao led by Ruy Elias Lopez.
Malacañang meanwhile is leaving it to the government's lawyers led by the Office of the Solicitor General to respond to the SC decision.
"Let the legal issue now be first taken cared of by our lawyers, they will have to pursue whatever steps they feel is necessary after the decision of the Supreme Court," Press Secretary Jesus Dureza said.
He said Solicitor General Agnes Devanadera intends to "undertake the next appropriate step."
"But having said that, we have already taken the position that whatever the results of that Supreme Court ruling, we will not be signing that MOA-AD. So let's wait for the actions that will have to be taken by our lawyers handling that particular case," he said.
Mindanao conflict escalation
The military is prepared for a possible escalation of the fighting with the MILF after the SC declared the homeland deal as "unconstitutional."
Army chief Lieutenant General Victor Ibrado said there is no need for the meantime to deploy more forces to the South but they are ready to do so when the need arises.
"Our troops are ready for any eventuality. That's a possibility (escalation) but we are always hoping for the best and preparing for the worst," said Ibrado, whose men are in the forefront of an ongoing offensive against rogue rebels.
At least 4,000 Army soldiers, backed up by Air Force and Navy personnel, are involved in the ongoing offensive against the recalcitrant forces of the 102nd, 103rd, and 105th Base Commands of the MILF under commanders Umbra Kato, Abdullah Macapaar alias Bravo and Aleem Pangalian.
On whether the military is raising its alert status in Mindanao in the face of the SC ruling and subsequent possible escalation of the fighting, Ibrado said: "As of now, there is no instruction to us to that effect. We are maintaining our troops currently on the ground."
There is no need yet to add more forces in Mindanao because they have sufficient forces there, the Army official added. (Sunnex)
