The contentious ancestral domain agreement between government and the rebel Moro Islamic Liberation Front lays the groundwork for the dismemberment of the country which is tantamount to culpable violation of the Constitution.

The Memorandum of Agreement on Ancestral Domain (MOA-AD) also compels the country to change its Constitution to conform to the provisions in the agreement as would have been demanded and required by international laws.

These two issues surfaced in today's oral argument at the Supreme Court which issued a temporary restraining order last Aug. 4 on the signing of the MOA-AD.

The MOA-AD would have been signed by the government panel on the peace process and the Moro Islamic Liberation Front (MILF), in the presence of foreign ambassadors and the Organization of Islamic Countries, last Aug. 5 in Kuala Lumpur, Malaysia.

One magistrate, Justice Antonio Carpio, openly warned that had the SC not issued the TRO, it would have triggered irreversible repercussions beyond the control of the Tribunal.

Critics of the MOA-AD have asked the SC to rule on the constitutionality of the agreement despite the government contention that the case has been rendered “moot and academic” with the non-signing of the document. They argued that government may only revise some of the contested provisions and push through with another agreement with the MILF.

The MOA-AD provides for the creation of the Bangsamoro Juridical Entity that will oversee the new Moro ancestral domain. Under it, the BJE can create its own judicial system, police forces and can enter into economic agreements and establish trade relations with other countries. He said that the agreement compels the country to commit to international obligations.

Devanadera’s defense

Justice Adolf Azcuna noted the MOA-AD mandates a change in the Constitution which the Philippines is under obligation to commit before the eyes of the international community. An added dimension is the fact that the aborted signing would have been held in Kuala Lumpur, which boosts the argument that it is an international commitment. “We may be sued by Malaysia before the International Court of Justice,” Azcuna said.

Solicitor General Agnes Devanadera, government counsel, insisted that while the signing was in Malaysia, “it was not intended to be governed by international law,” to which Azcuna tersely replied: “But that does not appear in the MOA.”

Devanadera's defense of the MOA-AD further wilted under questioning by Carpio.

Carpio said the fact remains that had the MOA signing not been derailed, “the government would have been obligated to amend the Constitution regardless of whether Congress refuses to initiate it or if it is not ratified by the people.”

Carpio said the defense that the contested provisions in the MOA-AD would be inapplicable if and when the SC declares these unconstitutional would not hold water since “under international law, we must comply with our international obligations.”

He added, “We cannot raise as defense our internal law or the Constitution,” he said. “You are risking dismemberment of the country in your conjecture,” he told Devanadera.

Carpio also pressed the Sol-Gen if the President gave the government panel the authority to sign the document and whether Mrs. Arroyo was informed about the signing of the MOA-AD in Kuala Lumpur. Devanadera replied that the panel was given travel authority but no authority to sign the document.

Although the MOA-AD was not signed, Carpio said the initialing of the document already gives it a “legal effect” which may prove fatal to the position of the government that the contract was only for negotiation purposes.

Government: MOA set aside

In arguing the government position, Devanadera said that “there is no more justiciable case” for the Court to consider as the government had already “abandoned' the MOA-AD from being signed “in its present form and in any other form.”

Chief Justice Reynato Puno asked if government had a change of position considering its latest statement that it is no longer signing the MOA-AD not only in its present but also “in any other form” and whether this could be interpreted as “setting aside” the agreement.

Devanadera said a communique sent to her by Executive Secretary Eduardo Ermita stated that “government will not sign the MOA-AD.” She said she called Ermita Thursday night and he clarified to her that the non-signing includes “any other form” of the controversial MOA-AD.

Asked by Puno if the setting aside of the MOA-AD would indicate that peace negotiations is back to zero, Devanadera hedged, saying that “the MOA may have been set-aside but not the peace process.”

She however reluctantly agreed that the peace process is back to square one when pressed by Puno on the status of the peace negotiation. “It may be your honor,” she said.

Puno directed Devanadera to submit to the Court the communication sent by Ermita and his authority to speak on behalf of the President that the MOA-AD, in its present or any other form, would no longer be signed.

Azcuna asked if the government panel has authority from the President to sign the document and if there was an official presidential withdrawal on the part of the panel. Devanadera said the government panel was only to sign “concession points” that would set the parameters for the final agreement and as a confidence-building measure.

But Azcuna pointed out that the “concession points” may constitute a “unilateral statement from the State” which may be used by the MILF or any interested foreign party in bringing a case before the international community and international courts.

Devanadera argued that the MOA-AD was only intended for “domestic” purposes but Azcuna said this view does not matter in international laws.