Some Supreme Court justices have floated the possibility of renegotiating the ancestral domain agreement between the government and the Moro Islamic Liberation Front (MILF), which has been assailed as unconstitutional.

Associate Justices Conchita Carpio-Morales and Arturo Brion suggested that the government and the MILF go back to the negotiating table since granting a "state within a state" in the Memorandum of Agreement on Ancestral Domain (MOA-AD) may not be possible under the Constitution.

During Friday’s five-hour oral argument, Lourdes Sereno, counsel of oppositors, former Senator Franklin Drilon and Adel Tamano, said the MOA-AD does not even recognize the 1987 Constitution other than a reference to a "legal framework."

Sereno said the Bangsamoro Juridical Entity (BJE), which will govern the new Moro ancestral domain, is entitled to have its own judiciary and police. It can also enter into economic agreements and establish trade relations with other countries.

Sereno said the Philippines’ territorial integrity will be compromised by the MOA-AD since it gives the BJE control over the development and utilization of natural resources within its land, territorial waters, and air space.

Associate Justice Antonio Carpio said that given such authority, the BJE could even enter into an agreement allowing US military bases. He said the MOA-AD gives wide powers to the BJE over its territory. However, the MOA-AD failed to delineate the scope and kinds of agreements that the BJE could enter into.

Lumads’ domain

Carpio also emphasized that the MOA-AD would affect the Lumads’ ancestral domain rights because it describes the Bangsamoro people as "natives" or original inhabitants of the Mindanao-Sulu-Palawan area.

"The Lumads and even the Christians who reside in the ancestral domain would be deprived of their freedom of choice," he said.

Carpio also agreed that the MOA-AD would bestow the BJE authority to establish its own central bank, and to automatically include private and government properties under its jurisdiction.

Not legally binding

However, Carpio said the changes envisioned in the MOA-AD are only proposals. It is still up to Congress to pass the enabling law that would eventually grant the Moros wider economic and political powers.

"The provisions are just proposed," he said, adding that "it is part of the freedom of speech to make proposals to Congress."

He explained the problem of the MOA-AD lies with the lack of commitment from the executive branch to secure favorable action from the Congress.

Notwithstanding this, however, he said "the MOA has no legal effect until Congress acts on it."

Associate Justices Renato Corona and Ruben Reyes agreed. They said that it is premature to judicially review the MOA-AD since it hasn’t even been signed in the first place. Corona said that the petitioners have a "fear of the unknown."

Reyes, on the other hand, stressed that the power to approve constitutional amendments belongs to Congress, not the executive branch.

Associate Justice Adolfo Azcuna said even a simple change, such as adding a crescent moon on the Philippine flag, can only be could done if there is an enabling law.

"Fr. Joaquin Bernas may be right. The MOA is just a scrap of paper," he said.

Renegotiate

As the powers of the Congress were laid out, Associate Justice Morales said the government has the right to renegotiate.

She referred to Sereno’s assertion that the MOA-AD should conform to the Constitution.

Morales said the Arroyo government may have to go back to the negotiating table to ensure that the provisions in the MOA-AD are consistent with the supreme law of the land.

If the MILF refuses to renegotiate, that is when the MOA-AD can be considered void.

Morales and Associate Justice Teresita de Castro said the root cause of the misunderstanding over the provisions of the MOA-AD is the lack of consultation with affected government bodies and other stakeholders.

De Castro said that if there was only "genuine consultation," then the demands of the MILF could have been studied and maybe even accepted by the majority.

"The problem was with the process," De Castro said.

Brion asked Sereno if she may be convinced to support the MOA-AD in case it is renegotiated, and she said this was possible. But she added such renegotiation should be anchored on consultation.

Meanwhile, Chief Justice Reynato Puno said the Constitution only allows autonomy, not secession. He added that the same Constitution also gives the president the power to review the MOA-AD.

Petitions on MOA-AD

The BJE, which will cover the original territory of the Autonomous Region of Muslim Mindanao, will also include at least 8 barangays in Zamboanga City—Zone III, Zone IV, Busay, Landang Gua, Landang Laum, Manalipa, Pasilmanta and Tigtabon—and around 700 more other barangays from North Cotabato, Basilan and Palawan.

Local officials from North Cotabato and Zamboanga City, however, decried their inclusion in the BJE. They alleged lack of consultation even if the government’s peace panel has recorded more than 100 instances of consultations on the accord with the MILF.

Gov. Jesus Sacdalan and Vice Gov. Emmanuel Piñol of North Cotabato asked the Supreme Court to require the disclosure of the unsigned MOA on ancestral domain in their July 23 petition. Zamboanga City Mayor Celso Lobregat followed suit by also filing a petition for mandamus and prohibition with an urgent prayer for preliminary injunction.

On July 27, GRP peace panel chair Rodolfo Garcia initialed the MOA-AD with MILF counterpart Mohagher Iqbal. The preliminary signing between the two was witnessed by Datuk Othman Abdul Raza, special adviser to the Prime Minister of Malaysia.

The final signing of the MOA-AD was scheduled on August 5. On August 4 however, the MOA-AD was stopped after the SC issued a TRO enjoining the GRP and MILF from inking the deal.

With the disclosure of the MOA-AD, however, the government has called for the lifting of the TRO. (abs-cbnNEWS.com/Newsbreak)

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