Sunday, August 17, 2008

The 3 Possible SC Decisions on the BJE

The Supreme Court still has another hearing date (August 22) set on the petitions questioning the legality of the Memorandum of Agreement on Ancestral Domain between the Arroyo administration and the Moro Islamic Liberation Front.

While other issues may still surface that could change the direction of the likely SC decision, a close review of the remarks made by the justices at last Friday’s 5-hour-long point to one of three possible decisions that the high tribunal will hand down:

First: The High Court will lift the TRO and toss out the petitions as premature given that the agreement has not been signed and that no actually illegal act has been committed, thus allowing the signing of the MoA-AD to proceed but with a caveat that it be immediately renegotiated;

Second: The Supreme Court will replace the TRO with a preliminary injunction stopping the MoA-AD altogether;

Third: The Court will toss the issue back to the Executive Department effectively removing the TRO on the ground that it is a political question, allowing the MoA to be signed after renegotiations.

Consider the following observations made by at least 11 of the Justices in the course of the 5-hour-long oral arguments:

Justice Antonio Carpio:

1) Several provisions of the MoD-AD clash with the Philippine Constitution and that implementing them would require amendments to the Charter;

2) The Bangsamoro Juridical Entity (BJE) to be formed would in effect govern all of Mindanao and Palawan, as well as the “lumad” [indigenous peoples] in Mindanao and their ancestral lands;

3) “There are obviously several provisions of the MOA that contradict the Constitution.BJE is not the state; ”

4) With the MOA-AD defining the “Bangsamoro people” as all indigenous people of Mindanao, without reference to religion, it would encompass even the Christians and the lumad. If the MOA pushes through, the ancestral domain of all lumad in Mindanao are now part of the BJE. If they want to leave, they can but they have to leave behind their ancestral domain;”

5) The MOA-AD refered to land and natural resources possessed by the Bangsamoro people from time immemorial to the present. If the lumad were included, then “you’re talking of the entire Mindanao, Sulu and Palawan. In short, ancestral domain will now be the entire Mindanao, Sulu and Palawan;”

6) could the lumad be included in the Bangsamoro people without consultation.

Justice Adolf Azcuna:

1) The MOA-AD “on its face is patently illegal under our present laws;”

2) Can the negotiating parties agree to change existing laws?;

3) 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;

4) “Fr. Joaquin Bernas may be right. The MOA is just a scrap of paper.”

Justice Renato Corona:

1) The parties questioning the agreement appeared to be afraid of nothing because without the signatures, the document did not legally exist;

2) Many concerns are being raised even if the document itself has yet to be signed. “You’re giving me the impression this is mere fear of the unknown. How can you fear something that does not exist.”

Associate Justices Conchita Carpio-Morales and Arturo Brion:

1) The government and the MILF should go back to the negotiating table;

2) Granting a “state within a state” in the Memorandum of Agreement on Ancestral Domain (MOA-AD) may not be possible under the Constitution.

Associate Justice Conchita Carpio-Morales:

1) 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;

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

Associate Justices Renato Corona and Ruben Reyes:

1) It is premature to judicially review the MOA-AD since it hasn’t even been signed in the first place;

2) Corona: The petitioners have a “fear of the unknown;”

3) Reyes: The power to approve constitutional amendments belongs to Congress, not the executive branch.

Justice Consuelo Ynares Santiago:

1)The petitions may be premature, considering that the MOA-AD has yet to be signed.

Justice Teresita Leonardo de Castro:

1)The MOA-AD is different from federalism because the BJE is allowed to enter into agreements with foreign nations.

Chief Justice Reynato Puno:

1) The Constitution only allows autonomy, not secession;

2) The Constitution also gives the president the power to review the MOA-A;

3) On the signature page of the MOA-AD, Foreign Secretary Alberto Romulo was designated as a witness and not as an endorser;

4) The MOA-AD is “not a done agreement” yet; 5) Nothing in the document says it is final.


Just hours ahead of the issuance on the SC TRO last August 4, the MILF through it web site, said the MoA-AD would be signed on August 25. Let’s see whether that ‘deadline’ will be met.

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