Supreme Court rules domain agreement ‘unconstitutional’

(Updated) MANILA, Philippines - The Supreme Court on Tuesday declared the ancestral domain agreement between the government and the Moro Islamic Liberation Front (MILF) as “unconstitutional." The Supreme Court voted 8-7 against the Memorandum of Agreement on Ancestral Domain (MOA-AD), which was opposed by several local government officials in Mindanao led by North Cotabato Vice Governor Emmanuel Piñol. In its decision, the high court enjoined the respondents and their agents from signing and executing the MOA-AD or similar agreements. They were also directed to conduct public consultations in accordance with the right to information, with respect to any further peace negotiations with the MILF. “The failure of the respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. [Executive Order] No. 3," the 90-page decision penned by Justice Conchita Carpio-Morales stated. “Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution," it added. The court also said that 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 added in a press statement. Aside from Morales, those who opined the memorandum to be unconstitutional were Chief Justice Reynato Puno, and Justices Consuelo Ynares-Santiago, Antonio Carpio, Adolfo Azcuna, and Ruben Reyes. Also joining the majority were Senior Justice Leonardo Quisumbing and Ma. Alicia Austria-Martinez. In its ruling, the High Court also stressed that any alleged violation of the Constitution by any branch of government should be subjected under judicial review. The remaining seven justices, meanwhile, said that the petitions against the MOA-AD should be dismissed because the agreement is already considered moot after the government withdrew from it. The seven magistrates from the minority position included Justices Dante Tinga, Minita Chico-Nazario, Presbitero Velasco Jr, Antonio Eduardo Nachura, Teresita Leonardo-de Castro, Arturo Brion, and Renato Corona. The decision directed the respondents to conduct public consultations first as prescribed by the people’s right to information. “Respondents and their agents are enjoined from signing and executing the same or similar agreements, in accordance with the discussions embodied in the decision," the ruling added. To recall, the MOA-AD signing was scheduled on August 5, 2008 in Kuala Lumpur, Malaysia, but the court issued a stay order a day before the event based on a petition by Piñol. The North Cotabato governor, along with the other petitioners, questioned the lack of disclosure and public consultation on the deal prior to the scheduled signing. President Gloria Macapagal Arroyo said the government will no longer sign the domain deal, in light of the series of attacks staged by suspected MILF elements in a number of Mindanao provinces last month. The atrocities were allegedly triggered after the Supreme Court ordered a temporary restraining order against the signing of the homeland pact. Peace talks in Mindanao were also threatened after the government dissolved its peace panel following the hostilities in southern Philippines and the brouhaha that surrounded the botched signing of the MOA-AD. MOA can't be reconciled with Constitution In its decision, 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, the court said that 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, it explained. 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, 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. No to executive privilege The Court, in the same statement, said 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. It added 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,"it added. 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: o 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; o 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. o 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. - Carlo Lorenzo, Mark Merueñas, GMANews.TV