MANILA, Philippines - When the 8-7 decision of the Supreme Court declaring the MOA-AD unconstitutional came out, the initial reaction of not a few, myself included, was that the Supreme Court had killed a dead horse with an advisory opinion. After all, the President herself had already announced that the Memorandum, whether in the disputed form or any other form, would not be implemented, and she had even disbanded the negotiating panel which had authored it. Moreover, she had begun to remedy one most glaring defect in the process of formulating the MOA by ordering massive popular consultation.
In effect, the President had either confessed that she had made a mistake or at least that her subordinates had made a grievous mistake and she was going about remedying the mistake as soon as possible even if her action might be seen as making her negotiators the scapegoats.
Eight justices of the Supreme Court, however, most of them with a record of vigorously disagreeing with the President, thought that the President should be told how she should conduct negotiations. Thus the 90-page sermon. On the other hand, seven justices, generally known to be protective of executive power, preferred to see that lessons had been learned and that the executive could be trusted to do better next time.
Aside from the 90-page main opinion, there are 11 other pieces, some concurring and others dissenting. Going through them one will find that there really is more unanimity than what the 8-7 count might indicate. There is a clear majority which would agree that there are provisions in the MOA-AD which depart from the present Constitution. The most notable of these would be the powers envisioned for the Bangsamoro Juridical Entity (BJE). The powers envisioned go beyond those possessed by local governments and even by the Autonomous Region in Muslim Mindanao. The MOA-AD speaks of the relationship between the BJE and the Philippine government as “associative,” thus implying an international relationship and therefore suggesting an autonomous state. This goes beyond what the present Constitution has set up. Clearly, the MOA-AD authors were willing to try untested approaches and to operate “out of the box” as other peace negotiators in other places have done.
If one sees that the signing of the aborted MOA-AD would have had the effect of making it a “done deal,” a finalized MOA-AD would indeed have been unconstitutional. It would, however, be unconstitutional not necessarily because it contained provisions which departed from the current Constitution but because these provisions would have been given life without following the constitutional provisions for achieving change in the Constitution. Thus the underlying assumption in the majority decision seems to be that, if the draft had been signed, it would have disastrously contained government commitments which, even if not self-executing, would have disastrous implications.
Thus it was that eight justices of the Court felt impelled to send a stern directive to an executive department which they could not trust. The message of distrust is embodied in the majority’s conviction that the MOA-AD was “capable of repetition in the future.” Nay more, the MOA-AD was implicitly judged to be in real danger of being repeated by the current administration.
I do not envy the President. She seems to be swimming in a whirlpool of distrust. The past strong challenges of some justices to “executive privilege” are affirmations of distrust. Investigations in the Senate are strong signals of distrust. The resurgence of impeachment moves is an active translation of distrust. And now the decision of the Court to flagellate the carcass of a decommissioned horse is another sign of distrust. Moreover, surveys do not show a public approval rating the President can be proud of. Where will all this end?
But back to the Court’s decision. Does the decision say that peace negotiators may not be authorized to propose amendments to the Constitution? Or, since peace negotiators are the President’s men, does the President’s oath, cited by the Court, to “preserve and defend” the Constitution prevent her from working for changes in the Constitution if needed to achieve peace?
The decision does not say that. After all, the President’s oath binds her not just to “preserve and defend” the Constitution but also to “do justice to every man.” Doing justice to every man may require her to work “out of the box.” Jurisprudence recognizes that the powers of the President are more than just those which are specifically enumerated in the Constitution.
What I read the decision to be “advising” the President is that she should not make commitments which she cannot deliver on her own. Thus, if she must seek changes in the Constitution, she should do it through Congress which has the constituent power to initiate constitutional change.
One could agree with the content of such advice, even if one believes that it is not the business of the Court to give advice. But in my contacts with members of the negotiating panel, I never got the impression that they wanted to by-pass Congress and to formulate self-executing provisions.
Admittedly, however, the document they produced lacks clarity. In their sincere effort to produce language acceptable to people who do not accept our Constitution, their language engineering did not succeed in crafting a document free of ambiguity. But it is just as well that the horse is dead, even if the MOA decision will not rank among the Ten Best of 2008.
