2nd of a series

GENERAL SANTOS CITY  (MindaNews / October 31) – The MOA-AD has been declared “contrary to law and the Constitution”. Any hope for it – now dead – to animate the peace process is moot. But what chance could it have had the Court been a little liberal?
The Decision has the answers.

The President’s Powers

As the Court has acknowledged, despite that the “constitutional provisions on autonomy and the statutes enacted pursuant to them have … been partially successful” with the creation of the ARMM, “the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF”. The Court saw the problem the MOA-AD intended to address. What’s surprising, however, was that it skirted its prescribed solution.

The solution lies in the President. “Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved may bring an end to hostilities.”

However, the President needs some concessions: “If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation.”

Its own prescription, notwithstanding, the Court deprived the President of “the leeway”. The MOA-AD was the product of three years and eight months of “exploration”.  Yet, the Court struck it down when local government executives of North Cotabato and the cities of  Zamboanga and Iligan complained of having not been consulted during the negotiation.

The unique power of the President to conduct peace negotiations must include the discretion when not to consult.  In the case of the MOA-AD, she knew – more than the complaining local government executives — the intricacies of the talks which can be messed up by third parties not privy to these intricacies by untimely intrusions.

Evidently, the Court did not consider this.

This does not mean that the right of the local government executives to be consulted has not been violated. But was that enough ground to scuttle the MOA-AD? Could consultations not have been made based on the agreement? It was not fully implementable in its initialed form. As the framework of the negotiation of the Comprehensive Compact, its flaws could have been effectively addressed in the CC – the Final Agreement.

As it appears in the Decision, the petitioners got all concessions and leeway while the President had none despite the Court’s prescription – give the President the necessary leeway to complement her unique power to conduct peace negotiations.

Limitation

By “leeway”, the Court in its Decision was explicitly referring to possible considerations for solutions including those that call for the amendment of the Constitution before they can be implemented. Such is the MOA-AD. And the leeway was expected from the Court, since it had accepted the MOA-AD for judicial review.  It instead blocked the leeway with limitation.

Of this limitation, the Court said: “As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.”
What is the extent of the limitation? “Given the limited nature of the President’s authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite.

The most she could do is (to) submit these proposals as recommendations to Congress or the people, in whom constituent powers are vested.”

In stressing the limitation of the President’s power, the Court was laying down the ground to censure the President by declaring the MOA-AD unconstitutional based on Consensus 7, Governance in which the Court said the President had promised to the MILF to have the Constitution amended and on Consensus 4, Governance which grants “the BJE the status of an ‘associated state’” – a status “not recognized under the present Constitution”.

Paragraph 7

The Court said: “Paragraph (Consensus) 7 on Governance of the MOA-AD states, however,  that all provisions thereof which cannot be reconciled with the present Constitution and laws ’shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework.’ This stipulation … is mandatory for the GRP to effect the changes to the legal framework contemplated in the MOA-AD. …”

Is Consensus 7, Governance a promise?  Is it mandatory? Unless given a leeway, it is more likely than not. What was the intention of the GRP negotiators in agreeing with the MILF? Did they not know the limitation of the President’s power in relation to Article XVII, Sections 1 to 3 of the 1987 Constitution?

The well known constitutionalist, Fr. Joaquin G. Bernas, S.J., in his Inquirer column (October 19) referred to this issue as a case of ambiguity  He said, “… in my contacts with members of the negotiating panel, I never got the impression that they wanted to by-pass Congress and to formulate self-executing provisions” although “… the document they produced lacks clarity.”

He explained: “In their sincere effort to produce language acceptable to people who do not accept our Constitution, their language engineering did not succeed in crafting a document free of ambiguity.” But it succeeded in building confidence. The room for a leeway lies there.

This has a parallel in the 1993-1996 GRP-MNLF peace talks. Chairman Nur Misuari, at the outset, rejected references to the Constitution and the ARMM Organic Act or R.A. 6734. GRP panel chairman Manuel T. Yan and President Fidel V. Ramos did not make an issue out of it. They went on with the negotiation without reference to the two documents. With confidence built, Misuari eventually accepted both the Constitution and R.A. 6734.

The Court never credited the President for the rapport the GRP negotiators had established with their MILF counterparts – calling their confidence-building efforts “whimsical, capricious” among others. Keeping the peace process open could not be achieved by confronting the MILF with the 1987 Constitution. No leeway, just limitations!

Intention

The Solicitor General failed to persuade the Court that the “unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well as constitutional processes” and that it “remains to be a proposal that does not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied with”

Lawyer Michael O. Mastura, senior member of the MILF panel, said that the MOA-AD is a “framework treaty” or agreement. He said its “working draft” would “explain the necessary ‘background’ for the GP-MILF peace process” including “the text, and the object and purpose of the treaty”.  Obviously, the Court did not find it necessary to examine the working draft.

Lawyer Sedfrey Candelaria, chief legal consultant of the GRP panel said – contrary to the Court’s opinion – that Consensus 7, Governance “may also explain the unique and non-self-executing character” of the MOA-AD. (Bold text supplied)

To explain, he quoted the first paragraph of Consensus 7 stating that: (a) the “Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact” and (b) for the Parties “to mutually take such steps to enable it to occur effectively”.

The “(b)” is relevant to the second paragraph of Consensus 7, Governance which is the focus of the Court’s opinion and consistently referred to as “Paragraph 7″ — reflecting mutual confidence prevailing: “When the GRP and MILF Panels came to the negotiating table,” Candelaria said, “they were driven by what is possible and not by what is unthinkable.”

That in the negotiation of the Comprehensive Compact, positions and agreements in the MOA-AD could change, Candelaria quoted a practice of negotiating peace agreements: “By their nature, implementation agreements involve new negotiations … as parties test whether they can claw back concessions made at an early stage.”
Candelaria, it should be noted, distinguishes the MOA-AD from the Comprehensive Compact – the first being the “early stage” or “framework agreement” and the second the “implementing agreement”. During the negotiation of the Comprehensive Compact, the parties “can claw back” or reconsider “concessions made” in the MOA-AD as the tentative character of the principles, concepts and framework may evolve”.

Candelaria said that the intention of Paragraph (Consensus) 7, Governance “was never … to supplant the powers of a co-equal branch of the Government by entering into the MOA-AD”.  The GRP Panel had “the mandate to submit by way of recommendations to the Executive as a result of discussions at the negotiating table.  Thereafter, the Executive may consider these for appropriate coordination within the Legislative Branch which may now undertake the necessary legal processes”.

Lawyer Soliman M. Santos, Jr., a legal scholar deeply involved in the  MILF and MNLF peace negotiations with the Government, said that the Court’s opinion on Paragraph 7 “is highly debatable, to say the least” and that the “respondents were all along following a recommendatory mode vis-à-vis their principal, the GRP,” relative to the President’s powers to negotiate — and their limitation — as expounded by the Court.
“Paragraph 7,” he argued, “should not be seen negatively as ‘making the Constitution conform to the MOA-AD’ but rather as a matter of good faith implementation of peace agreements through constitutional processes that may include any necessary amendments or revisions of the Constitution, as would be the approach too with certain international obligations.”

No Leeway

Consensus 7, Governance “is inconsistent with the limits of the President’s authority to propose constitutional amendments”; it is a “virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the ‘consensus points’ found in the MOA-AD”; so “it must be struck down as unconstitutional”.

This gives no leeway for the President to exercise her “unique” power to negotiate a peace agreement with the MILF. This dooms the peace process.

To recapitulate, the Court correctly diagnosed the Mindanao conflict. The establishment of the ARMM according to the Constitution did not stop the fighting between the Moro rebels and the Government.  Given the leeway to negotiate peace, the President can end the conflict. In her 2008 State of the Nation Address, the President hailed the MOA-AD as the breakthrough.

But in declaring the MOA-AD as unconstitutional, the Court gave leeway to the opponents of the agreement, conceding none to the President. The Court did not explore pleadings, facts and circumstances that could have swayed its opinion into conceding to the President the necessary leeway.

The leeway is this: Allow the President to fully exercise her power by letting Paragraph 7 of Governance take its full course and spell out in the Comprehensive Compact “the mechanisms and modalities for the actual implementation of this MOA-AD”.

The Court admonished the President for promising the MNLF to amend the Constitution and warned her she has no such power.  She can only recommend to Congress agreements that will require constitutional amendments for their implementation.

The admonition and warning are undeserved. The Court said the President cannot delegate powers that she does not have.  In like manner, she cannot promise to do what she has no power to do.   And, she cannot recommend to Congress any agreement that will amend the Constitution until the signing of the Comprehensive

Compact.

That’s water under the bridge but it calls for reflection.  (To Be Continued) (

“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. Mr. Diaz is the recipient of a “Lifetime Achievement Award” from the Titus Brandsma for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You may e-mail your comments to patpdiaz@mindanews.comThis e-mail address is being protected from spam bots, you need JavaScript enabled to view it ).