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GRP Wages War As SC Ponders On BJE MoA

August 23, 2008

Make no mistake about it: war is in progress in Mindanao as the Supreme Court is deliberating on the fate of the Bangsamoro ancestral domain agreement that has been initialed but which now will no longer be signed in its present for as far as the Arroyo government is concerned.

Overnight reports from the battlefront in Maguindao are saying at least 30 Moro rebels were slain  and government forces captured one MILF camp. The Air Force sent in fighter jets from as far as Basa Air Base in Pampanga, President Arroyo’s home province, to pummel MILF positiong with rockets and drop 500-pound bombs.

The Italian-made S-211’s are rarely called into action and used often only for training flights. But this time. they are being paired with missile-firing attack helicopters in the conduct of the biggest bombardments in Mindanao in nearly ten years.

The operations yesterday coincided with the Supreme Court’s latest full bench (en banc) session on the MoA-AD with indications emerging after the 9-hour hearing that the high tribunal will rule that the petitions questioning the initialed agreement’s constitutionality as “moot”

Here are the main points raised by the justices yesterday:


Chief Justice Reynato Puno: There are certain presidential actions that are vested with the President as Commander-in-Chief which necessarily do not require consultation with the people. As President, part of that power is to forge peace agreements “to restore order” in the country.

“Why should the President consult the people with respect to the parameters of power?” Such parameters “are already set in the Constitution.” Aside from judicial remedy, the public may still reject a presidential action by exercising its sovereign right. This is the “political solution” which may satisfy or cure assumptions that lack of consultations invalidates presidential action.

Chief Justice Reynato Puno gave the Office of the Solicitor General until Tuesday to answer the opposition to its motion to dismiss the petitions against the MOA-AD.

Justice Arturo Brion: The initialing of the contract “simply reflects” the intention of the parties and that the absence of signature means “effectively there is no MOA.” As such, “the government has not given its consent to the MOA.,” Since there is no perfected contract in the first place, “then there is no case.” Whether there is “justiciable case that is ripe for judicial determination.”

Justice Antonio Nachura: “There is no MOA in the first place” since it was only initialed and not signed.

Justice Ruben Reyes: Under the provision of contracts, the MOA-AD has no legal significance “with the absence of signature” and thus, “not yet a perfected document.” The initialing of the MOA-AD may simply mean that the parties “have initialed a true and correct copy” and not necessarily the final contract because the one who initialed the document on behalf of government “has no authority.” “So it is not a contract, not an agreement (yet).” “What is the value of this document? It is not signed. There is no basis, there is nothing anymore to prohibit.” “With the absence of the signature of the people who are authorized to sign, it is not yet a perfected document.” When the document was initialed, it was only an authentication of the pages of the document.

Associate Justice Conchita Carpio-Morales: President Gloria Macapagal-Arroyo has no authority to delegate the creation of the Bangsamoro Juridical Entity (BJE). Even if the President had the authority to create the BJE, “the executive could not bind Congress.”

Associate Justice Antonio Carpio: “On the basis of that document, you (referring to chief negotiator Rodolfo Garcia) do not carry the full power of the President. Your authority is only based on the document?” “[In] the last two plebiscites, the subject matter was ARMM [Autonomous Region in Muslim Mindanao], right? And ARMM, the Organic Act of ARMM does not provide that the ARMM will have its internal police, security force, its own courts, its own Comelec, correct?” “So can that [1989 and 2001 plebiscite] be considered consultation? Will that consultation apply now in the BJE [Bangsamoro Juridical Entity] concept?”

Responding to the argument by Dean Pacifico Agabin, lawyer for Senator Manuel “Mar” Roxas, one of the intervenors, that the executive could not commit to the MILF the amendment of the Constitution to conform with the agreement, Justice Antonio Carpio asked: “There is that clause under the MOA, correct?” “Yes,” said Agabin during Friday’s oral arguments at the Supreme Court that is trying to determine the constitutionality of the MOA-AD. “Then the MOA is unconstitutional on that ground,” said Carpio who also cited a television interview by an MILF leader who said that the Constitution needed to be amended to conform with the MOA. Carpio said the MILF wanted this provision to be included in the MOA because “the MILF did not want to be bound by our Constitution.”

Justice Arturo Brion: “It is a consensus that the MOA will be signed but the government has not yet given anyone the authority to sign the MOA. Since wala pang [there is no] go-signal from the government to sign the MOA, even if it has been signed, it will not be binding.”

Associate Justice Presbitero Velasco questioned why the MILF was not included as respondent in the petitions filed by the petitioners against the MOA-AD. Velasco said that all parties to the controversy should have been included so that they would all be bound by the Supreme Court’s decision.

Associate Justice Adolf Azcuna: Since there had been three plebiscites conducted in 1979, 1989, and 2001 for North Cotabato’s inclusion to ARMM, it could be considered a consultation. “How many participated in the three plebiscites for inclusion in the ARMM? Don’t you think that is enough consultation done by the government regarding the inclusion? They have been consulted three times, they said yes but are overwhelmed by the rest of the province.”

From the foregoing points, it appears abundantly clear what the fate of the petitions will be.

How the events in Mindanao will play out is an altogether harder question to answer.

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