Balay Drilon

I have not come across an agreement where the violations of the Constitution are so brazen and reckless as what I have seen in the Memorandum of Agreement on Ancestral Domain (MOA-AD) between the Government (GRP) and the Moro Islamic Liberation Front (MILF). In fact, the “Terms of Reference” and the entire MOA-AD cite numerous agreements, laws and international conventions, but omit any reference to the Philippine Constitution.

The MOA-AD contains the terms and conditions agreed upon by the GRP and the MILF on Ancestral Domain, or the Muslims’ historical claim over the Southern Philippines as their homeland, which was one of the three issues in the peace process under the 2001 Tripoli Agreement.

The most violent objection against the MOA-AD is the gross violation of the national sovereignty and territorial integrity of the Republic of the Philippines. It creates a state, with all sovereign powers and institutions.

Under the MOA-AD “the Bangsamoro Juridical Entity (BJE) shall be empowered to build, develop and maintain its own institutions, inclusive of, civil service, electoral, financial and banking, education, legislation, legal, economic, and police and internal security force, judicial system and correctional institutions, necessary for developing a progressive Bangsamoro society.”

The listing of institutions that the BJE can create is not exclusive. The BJE is empowered to build, develop and maintain other state institutions without limit.

The BJE shall have its own legislature whose laws will not be subject to national laws passed by Congress. The BJE shall also have its own courts whose decisions will not be reviewable by the Supreme Court. The most alarming and destructive power granted to the MILF is the power to “build, develop and maintain its own…police and internal security force,” in violation of express provisions of the Constitution.

BJE in UN, Asean

Moreover, the GRP recognized right of the BJE to enter into agreements with any friendly country and the option to establish and open trade missions in foreign countries with which it has economic cooperation agreements. The GRP is also under obligation to ensure BJE’s participation in ASEAN and the UN.

Under the MOA-AD, “it is the birthright of all Moros…to identify themselves as Bangsamoros”, a distinct people consisting of “those who are natives or original inhabitants of Mindanao … Palawan and the Sulu archipelago.”

The territory of the Bangsamoro homeland is well defined, referring to the “land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.”

The ownership of the Bangsamoro ancestral domain is vested exclusively in the Bangsamoro people, and such ancestral domain no longer forms part of the public domain, with the BJE given the power to revoke any such titles, permits, concessions and land tenure arrangements granted by the GRP.

The BJE shall have exclusive jurisdiction over internal waters extending 15 kms. from the coastline and shall exercise, with the GRP, joint jurisdiction over territorial waters consisting of our 200-mile economic zone.

Thus, the attributes of an independent and sovereign state, i.e. (a) government, (b) distinct territory, and (c) distinct people, are all present. The MOA-AD creates a Bangsomoro state within the Philippine territory. This is dangerous.

Groundwork for secession

There is a growing support for federalism as a means of empowering local governments. But the MOA-AD is not about federalism. It lays the groundwork for secession. We support the right of our Muslim brothers and sisters to self-determination, but this should not come at the expense of our country’s sovereignty and the integrity of our national territory.

Under the MOA-AD, the ARMM will be replaced by the BJE. The BJE is not one of the political units authorized to be created under the Constitution. The BJE will exercise powers much broader than an autonomous region. In fact, the BJE’s relationship with GRP is described as “associative”, a relationship appropriate only among sovereign nations.

The other dangerous aspect of the MOA-AD is the removal from the Philippine public domain of the Bangsamoro homeland, and vesting in the BJE exclusive ownership over its defined territory. As a consequence of that exclusive ownership over its Ancestral Domain, the BJE will exercise control and jurisdiction over all natural resources and potential sources of energy.

Under our Constitution, what MILF claims as ancestral land is part of the public domain where “all lands, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy and other natural resources are owned by the State.” Under the MOA, BJE would now be exclusive owner of such land.

The MOA-AD does not respect vested rights over private property, as it provides that “land tenure instruments of any kind or nature whatsoever granted by the Philippine Government shall continue to operate xx unless otherwise modified and or cancelled” by the BJE. This brazen disregard of vested rights is a flash point which can trigger conflict, not only between Christians and Muslims, but between Muslim and Lumads as well.

Not a mere scrap of paper

The wanton disregard of the Constitution in the MOA-AD is beyond dispute. But it is argued that its provisions shall come into force only “upon effecting the necessary changes in the legal framework”, which the defenders of the MOA-AD assert refers to amendments to the Constitution. To the Government, the MOA-AD is simply “a scrap of paper” and merely a listing of consensus points.

This is completely wrong and maliciously misleading. The MOA-AD had brought conflict and caused over 100 deaths. People do not kill and get killed for a mere scrap of paper.

Clearly in the eyes of the MILF, the MOA is both a legal and moral commitment on the part of the Government to implement its terms. A mere scrap of paper is not supposed to be signed in front of many international dignitaries in an elaborate ceremony, some of whom are endorsers or witnesses. The hollowness and falsity of this argument is belied by the actions on the ground. Perhaps the MOA is something else, but definitely not a scrap of paper.

Violation of separation of powers

It is also wrong to insist that the Executive Department can commit to amend the Constitution in an agreement with the MILF. Under Article XVII of the Constitution, the Executive Department has no role in the process of constitutional amendments.

Moreover, the GRP panel obligated itself that in “effecting the necessary changes to the legal framework,” the same must be done “with due regard to non-derogation of prior agreements.” This means that the President committed that any amendments to the Constitution must conform to the MOA-AD. The President cannot commit Congress, which has the power to propose amendments to the Constitution. It violated the principle of separation of powers.

We believe that a peace agreement should find a common ground to enable as many sectors to unite behind the agreement. The MOA-AD, instead of providing a common ground to unite us, caused division among our people.

I cannot believe that President Arroyo sincerely believed that the MOA-AD in its present form can achieve stability, unity and peace.

So what is her agenda?

I deplored the “internationalization” of the Mindanao peace process. The “unwarranted intervention” of certain foreign countries was making it more difficult for the national government to resolve its “internal problem” with the Moro Islamic Liberation Front (MILF).

I had been receiving persistent reports that the intervention of some countries, including Malaysia and the United States, was putting “undue pressure” on government negotiators to grant concessions to the MILF that clearly violate the Philippine Constitution, such as the giving away of certain territories of the republic. We certainly do not want to happen to Mindanao what happened to Kosovo.

I am alarmed by the appeal of MILF Chairman Ebrahim Murad to the Malaysian government to revive the Mindanao peace talks that was stalled when MILF forces attacked unarmed civilians in Central Mindanao around the second week of August last year. Murad also asked that the military be stopped from pursuing the MILF forces involved in the atrocities. The MILF commanders reportedly attacked the civilians because the Supreme Court stopped the signing of the GRP-MILF Memorandum of Agreement on Ancestral Domain last Aug. 5.

I hope Malacanang will find the moral courage to send a diplomatic note to Malaysia, saying in no uncertain terms that that the Philippine government will implement its laws against criminals who attack and murder unarmed civilians. I am sure that the Malaysian government will understand and will not give the impression that it condones the unlawful acts of the MILF, especially the unprovoked killing of innocent civilians.

We urge our leaders to resolve this Mindanao conflict as an internal matter. The equitable solution to the Mindanao problem can be achieved only through honest and sincere consultations with the people of Mindanao, and not with foreign countries that obviously have other selfish interests to pursue in Mindanao.

The internationalization of the Mindanao peace process is against our national interests.

Let me tell you also about the offer of British Ambassador to the Philippines Peter Beckingham, who said his office was willing to bring politicians and officials from the United Kingdom (UK) to share with the Philippine government and the MILF how the Northern Ireland peace process had moved forward.

I have said that while we appreciate the generosity of the British ambassador, we regret to inform him that the case of Northern Ireland is the wrong model for the Mindanao Peace Process.

Allow me to remind you that during the UK-Ireland peace negotiations, it was established that the Irish Kingdom was already a strong independent monarchy for centuries before it was forcibly annexed by the English Kings. Ireland was already a state with strong ties with papal states until 150 years ago. Mindanao has always been part of the Republic of the Philippines ever since it was established. We must find our own model.

I, together with Adel Tamano, petitioned the Supreme Court to bar permanently the Philippine panel from entering into an agreement with the Moro Islamic Liberation Front (MILF), because the proposed pact was in gross violation of the 1987 Constitution.

In the “Petition-in-Intervention,” we filed on August 11, 2009, we asked the High Tribunal to render a decision prohibiting and permanently enjoining the Respondents from further signing, executing, entering into, proceeding or implementing the terms of the MOA or any other agreement with terms similar to the MOA.

Our petition was also in support of an earlier petition filed by North Cotabato Gov. Jesus Sacdalan and Vice Gov. Manuel Pinol and Zamboanga City Mayor Celso Lobregat, Reps. Erico Basilio Fabian and Isabelle Climaco which sought to nullify the proposed GRP-MILF Memorandum of Agreement (MOA) on Ancestral Domain.

The MOA was supposed to have been signed by the two panels last Aug. 5 in Kuala Lumpur, Malaysia but was stopped by a temporary restraining order (TRO) issued by the Supreme Court. Named as respondents in the case were Secretary Rodolfo Garcia, Leah Armamento, Sedfrey Candelaria, Mark Ryan Sullivan, members of the Philippine panel in the Mindanao peace talks, and Hergemoges Esperon, Presidential Adviser on the Peace Process.

The petition-in-intervention we filed before the SC was the appropriate remedy to raise constitutional issues, in addition to the right of the public to information and public consultation, to support the overwhelming national clamor to junk this blatantly unconstitutional agreement between the GRP and the MILF.

Secretary Garcia and Esperon, who are poised to sign the MOA and who have, in fact, initialed and signified their consent to the same, acted without jurisdiction and beyond the framework of the Constitution. They also gravely abused and exceeded their authority and discretion in negotiating and finalizing the terms of the MOA which are patently unconstitutional, manifestly illegal and contrary to the fundamental law of the land.

I was compelled to raise the Constitutionality of the MOA since the earlier Supreme Court petitions only raised the issue of “non-consultation with the public.

This was understandable because when the North Cotabato officials filed their petition, they were not yet given a copy of the MOA. Thus, their lawyers were unable to question the unconstitutionality of its provisions. Unless permanently barred by the court, we said that the members of the GRP panel would be acting beyond their constitutional authority and jurisdiction and represents a grave abuse of discretion amounting to a lack of jurisdiction.

Our interest in the case was material and direct. “The MOA is blatantly injurious to Intervenors who are citizens of the Republic of the Philippines, eroding, as it does, the national sovereignty and territorial integrity of the Philippine state,” we wrote in our petition.

We also wrote in the petition that in view of the transcendental importance and impact of the MOA to the entire Philippine nation and the paramount public interest involved, adequate and speedy recourse may be had only through this Honorable Court and Intervenors have no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

In this controversy, we said the Supreme Court can serve as the “final arbiter of all constitutional issues,” and must nullify GRP panel’s “acts of negotiating and agreeing to the terms of the MOA and to prohibit them from signing the same as it manifestly violates the Constitution and is contrary to law and public policy”… “The peace panel exercised powers beyond its constitutional authority, effectively ceding the entire Muslim-Palawan-Sulu geographical territory to the MILF and creating within that region a State separate and distinct from the Republic of the Philippines.”

We also noted that it was necessary for the Supreme Court to promptly exercise its mandate and confront the significant constitutional issues involved considering that, except for the formality of actual signing of the MOA, the MILF has repeatedly asserted that the MOA constitutes a binding agreement or a “done deal.”

“To countenance Respondents’ acts even at this stage would create a dangerous precedent, since it would allow them to conveniently bind itself to other unconstitutional agreements in the future, on the excuse that such agreements are still subject to further acts by the other branches of government”…“This Honorable Court will, therefore, never have any opportunity to pass upon the constitutionality of any agreement entered into by the Respondents. At this stage of the peace process with the MILF, the Respondents should not be allowed to constantly negotiate an agreement beyond its constitutionally delimited authority and agree to the terms and conditions thereof which are patently unconstitutional.”

In the petition, we also cited the following legal grounds:

• The terms of the MOA infringe on the Constitution; the MOA was contrary to law; the MOA is contrary to public policy. It requires that the Constitution and the laws follow and conform to its terms. The MOA also deprives the Supreme Court from exercising its constitutional duty to review the acts of the executive; The MOA violates the doctrine of separation of powers. It sets out policies which are within the exclusive jurisdiction and constitutional competence of Congress.
• The Peace Panel should be prohibited from entering into the MOA creating the Bangsamoro Homeland and establishing the Bangsamoro Juridical Entity (BJE) because the creation of the Bangsamoro homeland and the BJE is not authorized under the Constitution. The Peace Panel should be prohibited from entering into an agreement creating the BJE as a state separate and distinct from the Republic of the Philippines.
• The Peace Panel should be prohibited from conceding and surrendering to the BJE the territorial integrity of the state, ownership and use of natural resources, the conduct of diplomatic or trade relations and part of its executive power.

I warn Malacanang not to sign the GRP-MILF Memorandum of Agreement on Ancestral Domain. President Arroyo will be committing an impeachable offense since the agreement constitutes a gross violation of the 1987 Constitution.

No doubt, Presidential Adviser to the Peace Process Hermogenes Esperon Jr and RP Panel Chair Rodolfo Garcia will be signing the agreement only upon the authority and orders of President Arroyo.

The MoA clearly violates the 1987 Constitution because it grants the so-called Bangsamoro Juridical Entity (BJE) a status of belligerency, which is a step closer to granting it international recognition as a separate and independent state. It will reportedly authorize the BJE to sign trade pacts, friendship treaties and other international agreements with foreign countries and send representatives to ASEAN and the United Nations. Moreover, the Terms of Reference cites the UN Charter, the UN Universal Declaration on Human Rights, International Humanitarian Law (IHL), which only sovereign states can be party to.

Further, the MoA unconstitutionally surrenders Philippine government authority over exploitation of natural resources, such as oil exploration, as the Bangsamoro territory no longer forms part of the national public domain.

Further, you cannot divide sovereignty, which the MoA provides for when it allows BJE to exercise shared authority and responsibility with the Philippine government over the Bangsamoro homeland.

While I have always supported the peace process in Mindanao, I maintain that any agreement should be within the boundaries of the present Constitution. This MoA goes beyond the constitutional parameters and boundaries, which provides only for autonomous regions. I am for the granting of full and genuine authority to the Autonomous Region for Muslim Mindanao (ARMM) but the process should not violate the Constitution.

To say that we need to amend the Constitution for this MoA only lends credence to allegations that the Arroyo administration intends to unscrupulously exploit the Mindanao peace process in its relentless bid to amend the 1987 Constitution and pave the way to extend President Arroyo’s stay in power beyond 2010.