MANILA, Philippines - The aborted (or merely delayed?) GRP-MILF Memorandum of Agreement on Ancestral Domain has now been the subject of much discussion. I myself have been quoted as saying that the MOA in its present state is not much more than a piece of paper. I stand by that, but perhaps I should say more.
The MOA has legal, psychological and political implications. Let me deal only with the legal, although I admit that it is not everything. In fact, I am not even sure that, in terms of constitutionality, the MOA is ?ripe? for judicial review.
Essentially the main objective of the MOA is to be able to amend the Organic Act which established the Autonomous Region in Muslim Mindanao (ARMM). The amendment envisions expansion of the geographical area of the ARMM and of its autonomous character.
It is clear that these objectives cannot be achieved by a mere memorandum of agreement. Even if the MOA were signed today, none of the goals enumerated in the MOA would be ripe for implementation. Achieving the goals will necessarily involve amending the Organic Act for the ARMM and may even involve amending the Constitution. For this reason I am surprised that in the document?s enumeration of terms of reference the Philippine Constitution is not mentioned. And it is also for this reason that in my view the controversy is not yet ?ripe? for judicial review. Recall Tan v. Macapagal.
The current Organic Act for ARMM is not any ordinary law. It is the product of a three-step process prescribed by the Constitution. The process began with the formation of a regional consultative commission whose task was to enlighten the legislators who were to draft the law. Second was the drafting of the Organic Act itself by Congress. And third was the plebiscite conducted among the areas concerned. It was a process in which, incidentally, ?executive privilege? was never raised!
The original 1989 Organic Act was replaced by the Organic Act of 2001 which incorporated the salient features of the 1996 Peace Agreement entered into between the Government of the Republic of the Philippines and the Moro National Liberation Front (MNLF). But what gave life to the Organic Act of 2001 was not the Peace Agreement but the completed democratic process prescribed by the Constitution. A 2002 decision of the Supreme Court would later make it clear that provisions of the Organic Act can be amended only through the legislative-cum-plebiscite process. And it stands to reason that any broad recasting of the Organic Act, as that envisioned by the MOA, should be preceded by widespread consultation.
The controversial MOA, product of innumerable GRP-MILF dialogues, did not go through a broad consultation. The lack of consultation is now being defended by government as a matter of ?executive privilege.? I find this to be ridiculous. The Organic Act is similar in nature to a Constitution. It is an embodiment of the will of the sovereign people of Mindanao. It is ridiculous to exclude the people from the formulation of what is supposed to be the expression of their will.
However, it is not a hopeless situation. It is not too late for the people to get involved, as in fact they are already being involved. Unfortunately the circumstances have made the matter highly explosive.
In the end, those who are pushing for the achievement of the goals of the MOA will have no choice but to feed it into the legislative process. And the legislature will have the opportunity to conduct all the needed hearings in aid of legislation. I just hope that the executive department will not once again wave its signature flag of ?executive privilege?!
Indeed, when the document begins to be subjected to scrutiny, there will be a lot to debate about. Let me mention some.
Among the very important elements in the document is the matter of handling ?ancestral domain? and ?ancestral land.? It will be a reprise of the debate on the Indigenous People?s Rights Act which ended in a 7-7 vote of the Supreme Court.
There is also the matter of expanding the territory of the proposed Bangsamoro Juridical Entity. There is now loud weeping and gnashing of teeth about this.
It is also obvious that the wish of the MILF is to have a stronger say about the natural resources within the territory they desire to control. Crafting the final law on the subject will very likely necessitate constitutional amendment.
And what about governance? The MOA speaks of a relationship with the national government which is ?associative characterized by shared authority.? The language is Greek and cries for translation.
Toward the end of the document I find this passage: ?Any provisions of the MOA on Ancestral Domain requiring amendments to the existing legal framework shall come into force upon the signing of a comprehensive compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe contained in the comprehensive compact.?
The paragraph is highly loaded and will need a lot of exegesis. I take it that the ?legal framework? referred to are the existing Organic Act and the 1987 Constitution, but for some reason the document is reluctant to even mention the Constitution. Which is being given greater weight, the ?legal framework? or the ?comprehensive compact? or the ?prior agreements??
Finally, if and when the government representatives sign the MOA, what will they be agreeing to and of what binding force will their agreement be? Will these and other questions be clarified in the scheduled oral arguments?