What We should know about the declaration of unconstitutional of the Memorandum of Agreement on Ancestral Domain of the Bangsamoro People in Mindanao?

 Tuntayan Tano (We should know)

by Atty. Lanang Ali

There were several Petitions filed by officials of all Local Government Officials in areas affected by the MOA-AD in Mindanao and some other government officials and residents of in other areas who were personally against the interest and welfare of the Bangamoro people for one reason or the other    in the Supreme Court of the Philippines against the Government of the Republic of the Republic of the Philippines (GRP).  For emphasis and information of the Bangsamoro people, especially those belonging to the Muslim communities affected in Mindanao and in Muslim dominated areas, the Petitioners were Provincial Governor JESUS SACDALAN and/or Vice-Governor EMMANUEL PIÑOL of North Cotabato, CELSO L. LOBREGAT, City Mayor of Zamboanga City MAYOR LAWRENCE LLUCH CRUZ City Mayor of Iligan, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, Zamboanga City,  ROLANDO E. YEBES, in his capacity as Provincial Governor, FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of the Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, SETH FREDERICK P. JALOSJOS, FERNANDO R. CABIGON, JR., ULDARICO M. MEJORADA II, EDIONAR M. ZAMORAS, EDGAR J. BAGUIO, CEDRIC L. ADRIATICO, ELIXBERTO C. BOLANDO,JOSEPH BRENDO C. AJERO, NORBIDEIRI B. EDDING, ANECITO S. DARUNDAY, ANGELICA J. CARREON and LUZVIMINDA E. TORRIN, the other local and national government officials   Mayor NOEL N. DEANO, MUNICIPALITY OF LINAMON, MAYOR CHERRYLYN P. SANTOS-AKBAR, Basilan Province  were Petitioners-in-Intervention namely, ERNESTO M. MACEDA, JEJOMAR C. BINAY,  QUILINO L. PIMENTEL III, FRANKLIN M. DRILON and ADEL ABBAS TAMANO, SEN. MANUEL A. ROXAS,THE CITY OF ISABELA, BASILAN, SUHARTO T. MANGUDADATU, Provincial Governor of the Province of Sultan Kudarat, RUY ELIAS LOPEZ, in behalf of Indigenous Peoples in Mindanao (Not Belonging to the MILF RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF, CARLO B. GOMEZ, GERARDO S.DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G.  JAGMIS, as of Palawan, MARINO RIDAO and KISIN BUXANI. The Petitions was docketed by the Supreme Court as 183962, G.R. No. 183752, G.R. No. 183591, G.R. No. and G.R. No. 183893. For information on the Petitions please refer to these docket numbers of the Supreme Court. All these Petitions seemed to be prepared by the same Person, although the Petitioners came from different places and different walks of life.  

The Respondents were The Government of the Republic of the Philippines Peace Negotiating Panel (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process, Respondents,
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Only in Petition with docket No. G.R. No. 183951 that the Petitioners therein may had impleaded the the Moro Islamic Liberation Front (MILF), but there was no showing, whatsoever, that the said Respondent was duly served of the summons with a copy of the Petition; while the Petitioners in the other Petitions the record will show that the GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, were duly served with summons.  At this juncture, nobody whosoever had authorized to represent the MILF or MILF Peace Panel Chairman Mohagher Iqbal as Respondent or as Respondent in Intervention, or in whatever capacity.

What are the important concerns on the following facts?

1. that all the local government officials directly involved the MOA-AD were under direct control and supervision of the Secretary of the Department of Interior and Local Government: The DILG Secretary, who was a member of the Cabinet of the President, can relay any information to any local government official in Mindanao relative to the MOA-AD, therefore, Vice-Governor Emmanuel Pinol of North Cotabato was lying when testified before the Supreme Court that there was a need of public consultation of the MOA-AD.    

    2. that GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process.  As such Presidential Adviser on the Peace Process (OPAPP) being a member of the Cabinet of the President, he was presumed to have performed his job regularly, therefore, a mere unfounded allegation of Vice-Governor Emmanuel Pinol of North Cotabato who was evidently bias against the Muslims, cannot be the sole basis of the Supreme Court to declare the MOA-AD, which was product of several years of negotiation and months of legal review.       

Based on the forgoing facts, it is the conclusion of every Bangsamoro Moro who are concerned on the plight of MOD-AD that the non-signing of the MOA-AD was part of the Grand Plan of Government of the Republic of the Philippines (GRP) not to sign any agreement reach by its negotiators, dissolve its Peace Panel and not to continue with the Peace Talks, for the following reasons:

1. Why was the MOA-AD not signed immediately after the GRP Peace Panel Chairman had affixed his initials thereon when there was nobody could stop him or when there was no legal impediment for signing?
    
2. Why did the GRP Peace Panel Chairman allow delay of the signing of the MOA-AD thus giving time and reason for the Parties not to sign the MOA-AD?

3. Considering that the MOA-AD was a major program of the President of the Philippines, Her Excellency Gloria Macapagal Arroyo, why did the whole machinery of the Executive Department fail to prevent or to neutralize any move from the Anti-MOA-AD local government Executives  in Mindanao who were against the signing of the MOA-AD, but what happened was that instead of convincing local government Executives  in Mindanao to support the signing of the MOA-AD, they supported the Petitions to declare the MOA-AD unconstitutional, thus the Supreme Court of the Philippines on the sole ground that the respondent GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (GRP) PEACE NEGOTIATING PANEL had not conducted public consultations on the MOA-AD.
    
4. Why did the GRP PEACE NEGOTIATING PANEL assisted and represented by Solicitor General deliberately fail to protect the MOA-AD the in view of the (GRP) PEACE NEGOTIATING PANEL’s commitment to protect, but to the surprise of the MILF PEACE NEGOTIATING PANEL the President of the Philippines has expressly declared to the public, and reiterated by the Solicitor General in open court before the Supreme Court that she will not sign the MOA-AD in its present form or in any form. Chairman of does not anymore serve GRP’s interest notwithstanding its commitment to sign the MOA-AD.   

5. Why the GRP PEACE NEGOTIATING PANEL assisted and represented by Solicitor General deliberately fail to cite the fact that the MOA-AD was not yet a final agreement because at most it was only a framework agreement for the Comprehensive Compact to be negotiated by the Negotiating Parties, to agree on the final political solution to the Bangsamoro Problem and the armed conflict in Mindanao.  

The deliberation or discussions of the Comprehensive Compact first require the signing of the MOA-AD, serving as a Framework Agreement for the Comprehensive Compact. It agreed by the Parties that not to conduct public consultation while negotiation on substantive issues is on-going especially when the Parties are negotiating on sensitive issues.  Hence, Negotiating Parties during the negotiation of the MOA-AD the Parties have to strictly observe the confidentiality of the negotiation. Only the respective Principals and those indispensable in decision-making for the substantive issues on the negotiating table were informed.         
 
Thus, Congress can still conduct public consultations on the MOA-AD in passing said enabling law.   It is for this reason that the claim of the alleged lack of public consultation is untenable or unjustifiable on the issue of its unconstitutionality during the negotiation.  At any rate, the results of the negotiation will be submitted to the people, who are the stakeholders during the referendum which may be called for their ratification or rejection, rather than to stop the whole process, because it was declared unconstitutional.  Besides, the MOA-AD, including the Comprehensive Compact will still be submitted for purposes of legislation to pass an enabling Law. This process makes the difference negotiation and legislation, wherein in negotiation, confidentiality is observed especially on sensitive issues; while in legislation, public consultation is observed on all issues as a legal requirement.  As far as the MOA-AD is concerned, it is not yet late because if the GRP PEACE NEGOTIATING PANEL in the GRP-MILF Peace Talks under the strict supervision of the Cabinet Cluster E of the President, and after a Panel of Lawyers mandated by the President to review the MOA-AD, it is but reasonable and proper to give the benefit of the doubt to the recommendation of the  GRP PEACE NEGOTIATING PANEL for the signing of the MOA-AD, whose aim is for the peaceful resolution of the conflict in Mindanao. Thus, the GRP may file a Motion for Reconsideration, which the Supreme Court to FAVORABLY RECONSIDER its previous ruling that the MOA-AD was unconstitutional.   Lastly but not the least, in this jurisdiction any law may be amended at any time to change or improve a law for the better, to correct a defect, error, omission of a law.  For the reason that MOA-AD-AD, granting that an enabling law is passed by Congress, there is no need to declare the MOA-AD unconstitutional because the same may be amended at any time.                

Thus, the concerned Local Government Units and Non-Government Organizations (NGO’s) as well as Congress of the Philippines can conduct massive public consultations on the MOA-AD once the Supreme Court reconsiders its previous ruling of unconstitutionality of the MOA-AD-AD It is for this reason that the claim of the alleged lack of public consultation is untenable or unjustifiable on the issue of its unconstitutionality.  The fact remains that the problem in Mindanao is still there, the question is, did the Supreme Court, by declaring the MOA-AD unconstitutional, did it resolve the armed conflict in Mindanao? For all intents and purposes, the armed conflict, sufferings and destructions are still there, and which may even escalate or worsen at any time, because the Parties have no more trust and basis to continue the negotiation.  The GRP-MILF Peace Talks can still be salvaged if the Parties are practical, not too legalistic, considering that one Party as known to the other Party is a rebel liberation front, in their approach to the problem. Both Parties must be serious and credible to implement the letter and spirit of the General Framework of Agreement of Intent Between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) dated August 27, 1998 and the Agreement on the General Framework for the Resumption of Peace Talks Between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front dated March 24, 2001.  Had the MILF Peace Panel knew before hand that the Supreme Court of the Government of the Republic of the Philippines will take cognizance of the aforesaid Petitions, which were seeking to declare the MOA-AD, the MILF Peace Panel will certainly invoke the above-cited General Framework of Agreement of Intent Between the GRP and MILF dated August 27, 1998 and the of Peace Talks Between the GRP and the MlLF dated March 24, 2001 because whatever may be the action of the  Supreme Court on the said Petitions which were filed before it, the same will no longer be a product of negotiation, unlike the MOA-AD but an imposition.  This is the nature of judicial process where the court in any judicial controversy will always act showing the majesty or supremacy of the law whoever are the Parties may be. The important difference between negotiation and judicial determination is that in negotiation, the Parties should always observe the primacy of the negotiation in order to succeed. In judicial determination, only the Court finally determines the controversy submitted to it for resolution, nobody could interfere with it except to such determination of the Court following another procedure.  In the case at bar, since the GRP has lost the primacy of peace process, when it dissolved the GRP PEACE NEGOTIATING PANEL last month, without replacing it and when it made as pre-condition for the resumption of talks with the MILF the so-called Disarmament, Demobilization, and Re-integration or in short, DDR, when the GRP knows that as a matter of matter of practice in other countries with similar problem before, like East Timor, Aceh of Indonesia, Sri Lanka, Sudan, and Ireland, to name a few, that DDR was implemented after the signing of the Peace Agreement. In Mindanao, the signing of the peace agreement was aborted when the Supreme Court of the Government of the Republic of the Philippines issued a Temporary Restraining Order, ordering the GRP PEACE NEGOTIATING PANEL to stop the signing of the MOA-AD.               

The Petitioners of the Petition seeking to declare the Memorandum of Agreement on Ancestral Domain (MOA-AD) of the Bangsamoro people in Mindanao unconstitutional was initialed by the Chairman of the Government of the Republic of the Philippines (GRP) Peace Panel and the Chairman of the Moro Islamic Liberation Front (MILF). This declaration is devoid of merit with due respect to the Supreme Court.  The high court failed to take into consideration that the MOA-AD was a product of intense negotiation for several years between the GRP Peace Panel and the MILF Peace Panel with different and distinct principal and constituency.  

It is worthy to mention that the principal of the GRP Peace Panel was the President of the Government of the Republic of the Philippines and the principal of the Moro Islamic Liberation Front Chairman of the Central Committee of the Moro Islamic Liberation Front represented by its Chairman, formerly by Sheik Salamat Hashim succeeded by Al Haj Murad, upon his untimely demise.  At this juncture, it is worthy to mention that in the peace negotiation between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front there was conducted outside the Philippines with the presence and participation, or intervention of friendly governments, to wit: the Government of Malaysia, as Lead Facilitator and ; Libya, as alternate Facilitator of during the opening negotiation at Tripoli Libya;  also as Head of the International Monitoring Team (IMT); Brunei as Member of the International Monitoring Team (IMT); Japan as Member of the International Monitoring Team (IMT) Relief-Rehabilitation-Development; European Union as Member of the International Monitoring Team (IMT) Relief-Rehabilitation-Development.  It was also worthy to mention that on substantive issues, the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) had agreed on December 17, 1999 on the Rules and Procedures on the Conduct of Formal Peace Talks Between the GRP and the MILF.  
              
As guiding principle and mandate entered into between two (2) Parties of equal rights and liabilities in their deliberations during the formal peace talks, and in the interpretation of agreements, the GRP and the MILF Peace Panels shall all times conform to the letter and spirit of the General Framework of Agreement of Intent Between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front signed on August 27, 1998 at the Dawah Center, Crossing Simuay, Sultan Kudarat, Maguindanao. They shall clothed with proper credentials and authority duly signed by the President of the President, or in his authority in the case of the GRP; and by Chairman Salamat Hashim/Al Haj Murad in the case of the MILF, to bind and speak in behalf of the GRP and the MILF with the aim of continuing the peace negotiations until the Parties reach a negotiated political settlement of the armed conflict in Mindanao. To ensure the success of the negotiation, the Parties have abide with the rules of the negotiation as agreed by the Parties, thus, in Article V, General Provisions Section 1. , on Confidentiality, the Parties had agreed as follows to wit:

a.    The Panel Chairperson may mutually agree on the confidentiality of sensitive issues under negotiations.
b.    Limitations on access to or release of official records of the deliberations and minutes of the meetings shall be mutually agreed upon by the Chairpersons of the Peace Panels.

The above-cited rules are based on the study and experience that in negotiation, an element of confidentiality is necessary during the process of negotiation, especially while negotiating on sensitive issues. Therefore, lack of public consultation does not necessarily make the agreement reached by the GRP and MILF Panels on the MOA-AD unconstitutional. At any rate, the GRP and MILF Panels had agreed that after the signing of the MOA-AD there will be an advocacy to be conducted all throughout the conflict-affected areas in Mindanao for information dissemination of the MOA-AD. And later should the Parties will agree on the date of the plebiscite after the Comprehensive Compact is signed by the Parties to express their plebiscitary will on the MOA-AD. It is the humble opinion that the ruling of the Philippine Supreme Court has no legal basis on the ground that public consultation is not required by law during negotiation to ensure its success to resolve a political problem being undertaken by the Executive Department of Philippine Government. And later should the Parties will agree on the date of the plebiscite after the Comprehensive Compact is signed by the Parties to express their plebiscitary will on the MOA-AD. It is our humble opinion therefore that the ruling of the Philippine Supreme Court has no factual and legal basis on the ground that public consultation is not required by law during negotiation of a proposal in order to ensure the success of the negotiation; and in the in the instant case, to resolve a political problem/armed conflict in Mindanao being undertaken by the GRP Peace Panel under the Executive Department of Philippine Government. Legislation without Public consultation when it is required by law may make the Bill passed by Congress into law, unconstitutional.

The deliberate failure of the GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (GRP) PEACE NEGOTIATING PANEL to failure protect the MOA-AD against its detractors when all the means were at its disposal to prevent the non-signing of the MOA-AD; including the filing of a Motion for Reconsideration, to seek to reconsider the Supreme Court’s ruling of unconstitutionality.  This incident of non-signing  of the MOA-AD may be considered another grievous grievance committed against the Bangsamoro people and perpetrated by the whole GRP machinery – Executive Department represented by the President of the Philippines, the Executive Secretary, the Presidential Adviser on the Peace Process; the Senate, represented by some Senators who are mostly from the Opposition, and the Judiciary represented by the Supreme Court of the Philippines, which at the outset immediately issued a temporary restraining order (TRO),  ordering the members GRP Panel  to restrain and desist from signing the  MOA-AD ; and finally declared the MOA-AD unconstitutional  thus depriving the Bangsamoro people of their treaty rights which contain their inherent right to self-determination, all in violation of existing consensus points or agreements on the matter particularly the General Frame Agreements signed by the Parties such as the  General Framework of Agreement of Intent Between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front signed on August 27, 1998 and the Agreement on the General Framework for the Resumption of Peace Talks Between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front dated March 24, 2001.