Palace's ‘grave abuse of discretion’ in MOA-AD raised
By Aries Rufo, abs-cbnNEWS.com/Newsbreak | 08/29/2008 8:26 PM
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The Supreme Court may yet rule on the constitutionality of the controversial ancestral domain agreement with the Moro Islamic Liberation Front despite last-minute efforts by the government to render the case moot and academic.
In today’s oral argument, justices identified several instances where grave abuse of discretion was committed by the government panel in negotiating the MOA-AD with the MILF.
Solicitor-General Agnes Devanadera informed the Tribunal that there is no more case ripe for the justices to consider since the government is “setting aside” the Memorandum of Agreement on Ancestral Domain (MOA-AD), either “in its present for or any other form.”
The argument is apparently meant to stop a judicial declaration that the MOA-AD is unconstitutional which could embarrass the administration or open President Arroyo to possible impeachment for violating the Constitution.
But a number of justices persisted in asking questions on the substance of the MOA-AD.
Grilling Devanadera, Justice Dante Tinga pointed out that singling out the MILF as representative for the Bangsamoro Juridical Entity envisioned by the MOA-AD is tantamount to grave abuse of discretion since this would be detrimental to the interest of other indigenous groups there.
Tinga pointed out that the IPRA law does not identify the MILF as indigenous peoples or as one of the indigenous cultural communities which may have a legal claim on ancestral domain.
He also noted that “there were people ahead of the Muslims” and that these “Islamized” populace, like the Christians, arrived only in the 14th century.
“If we consider Muslims as IPs, then the Pampangos, Pangalatoks, Ilocanos, everybody would be considered an IP,” Tinga said.
Historical basis
In singling out the MILF for the MOA-AD negotiation and the BJE creation, “there was grave abuse of discretion in considering (them) different from the rest.”
Devanadera replied that entering into an agreement with the MILF was based on political consideration but Tinga countered that in the claim for ancestral domain, the basis should have historical and scientific support.
“All of us want peace, but peace at what price?” Tinga said.
Tinga asked Devadera if that the MOA-AD would confer the MILF an “international personality” to which the Sol-General replied in the negative. She stressed that the MOA-AD “was not intended as an agreement with another state.”
But Tinga disagreed, pointing out that the experience between Palestine and Israel showed the contrary.
Non-derogation of prior agreements
For his part, Justice Antonio Carpio zeroed on the apparent excess of jurisdiction that the government panel committed in agreeing to certain provisions in the MOA which may be beyond their power.
Grilling the counsel for the government panel Sedfrey Candelaria, Carpio questioned the MOA-AD provision which states that any constitutional change “cannot derogate” the prior agreements that had been sealed. Among these so-called prior agreements include the cessation of hostilities, rehabilitation, resumption of talks and negotiation within the general framework of reference.
“What is so sacred with these prior agreements that cannot be derogated?” Carpio asked.
Several times, Carpio asked Candelaria point blank if the panel or the President has the authority to commit to the MILF the non-derogation of prior agreements or if the President has the authority to sign the agreement.
Candelaria refused to answer directly, prompting a frustrated Carpio to blurt out: “You’re evading, it’s very clear.”
After more than five minutes of repeating his question whether the President could commit to the MLF that any change in the Constitution would not derogate prior agreements, Candeleria finally answered: “I don’t think that was the intention.”
He also budged in answering the question whether, as a lawyer, he would recommend to the President the signing of the MOA-AD.
