The Supreme Court nipped in the bud the process leading to the establishment of an autonomous Bangsamoro state in Mindanao when it issued on Monday a temporary restraining order (TRO) stopping the signing, scheduled for Aug. 5 in Kuala Lumpur, of an agreement seeking to create an expanded Bangsamoro homeland.

The checkmated Memorandum of Agreement initialed by the Philippine government’s peace panel and representatives of the Moro Islamic Liberation Front ceded extensive portions of the national territory in Mindanao and neighboring islands, including Palawan, to the Bangsamoro homeland, and clothed its prospective government with broad political powers to govern its territory and control its rich economic resources.

Under the agreement, the planned Bangsamoro homeland would be governed by a so-called “Bangsamoro Juridical Entity.” The new entity would have its own “basic law,” its own police and internal security force, its own system of banking and finance, civil service, education, legislature and electoral institutions, as well as full authority to develop and dispose of its mineral and other natural resources. The new entity would also be empowered to send trade missions to foreign countries and enter into executive agreements as well as delegations to international organizations, such as Asean. These powers and functions constitute most of the attributes of a sovereign state.

The high court issued the TRO in response to a petition filed by officials of Zamboanga City and North Cotabato, mostly Christian dominated areas. They asked to be excluded from the agreement that would incorporate some of their areas into the expanded Autonomous Region in Muslim Mindanao to be renamed Bangsamoro homeland. They claimed that they were not consulted in the negotiations over the agreement, which would dislocate the lives of their people in the course of adjusting to the new arrangements sought by the agreement. The agreement sought to expand the ARMM to include Palawan (which is defined as part of Luzon), South Cotabato, Zamboanga City, Sultan Kudarat, North Cotabato, Zamboanga del Norte and Zamboanga del Sur. The petitions criticized the secrecy surrounding the negotiations and challenged the government’s claim that it was covered by executive privilege in conducting negotiations in secret to prevent the peace talks from being compromised.

The government opposed the petition for a TRO, invoking executive privilege to justify its refusal to reveal details of the agreement. The government peace panel, headed by former Armed Forces chief of staff, General Hermogenes Esperon, argued:

“These negotiations include definite military, national security and diplomatic concerns, and have involved the presence of a foreign mediator (Malaysia). This being so, the entire process—the negotiations involving the Memorandum of Agreement—is covered by the doctrine of executive privilege which prevents the disclosure of information that could subvert military or diplomatic objectives.”

The petition lays squarely on the Supreme Court the issue of the limits of executive privilege in the conduct of foreign policy, especially when set against the circumstances that such secrecy results in agreements that undermine the sovereignty of the state and that seek to establish new entities which tend toward separatism.

Separatism leading to the establishment of an Islamic State carved out of the national territory has been at the center of the 40-year-old struggle by the Muslim rebels. Copies of the draft agreement were kept exclusively within the tight circle of military secrecy. They were distributed to retired generals at a forum on July 24 in the military general headquarters Camp Aguinaldo, where Esperon, the presidential adviser on the peace process, was guest of honor. The draft came to light and was published in the newspapers after a copy was leaked to the press.

The secrecy over the negotiations, invoked as an exercise of the right of executive privilege, collides with one of the more celebrated doctrines governing diplomatic negotiations pronounced by Woodrow Wilson in his famous 14 points for peace settlement after World War I. In his speech to the joint session of the US Congress on Jan. 8. 1918, Wilson said the first point in a program of peace for a postwar world was: “Open covenants of peace, openly arrived at, after which there shall be no private understandings of any kind but diplomacy shall proceed always frankly and in the public view.” He added: “It will be our wish and purpose that the processes of peace, when they are begun, shall be absolutely open and that shall involve and permit henceforth no secret understandings of any kind. The day of conquest and aggrandizement is gone by; so is also the day of secret covenants entered into in the interest of particular governments and unlikely at some unlooked-for moment to upset the peace of the world.

“It is this happy fact, now clear to the view of every public man whose thoughts do not still linger in an age that is dead and gone, which makes it possible for every nation whose purposes are consistent with justice and the peace of the world to avow now or at any other time the objects it has in mind.”

Wilson’s 14 points became the basis for a peace program and, as one historical document notes, “It was on the back of the 14 points that Germany and her allies agreed to an armistice in November 1918.”

In the Mindanao peace process, the temporary peace agreement on the Bangsamoro homeland contains the ingredients that may scuttle the promise of an armistice.