Despite MOA loss, Palace still controls SC

ARIES RUFO, abs-cbnNEWS.com/Newsbreak | 10/14/2008 7:07 PM

Printer-friendly version | Send to friend

Has the Supreme Court redeemed itself as an independent institution with its cliffhanger decision on the ancestral domain case? The aborted homeland agreement would have compelled the country to commit to constitutional change and, critics say, would have also led to a possible break-up of the Republic.

With an 8-7 vote, the Tribunal declared as “contrary to law and the Constitution” the Memorandum of Agreement on the Ancestral Domain with the Moro Islamic Liberation Front, saying that the Presidential Adviser on the Peace Process “committed gave abuse of discretion” when he guaranteed an amendment to the Constitution to conform with the MOA, aside from failing to conduct “the pertinent consultation process.”

“The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and virtual refusal to perform the duty enjoined,” the ruling, penned by Justice Conchita Carpio-Morales, said.

“The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely the associative relationship between the GRP (Government of the Republic of the Philippines) and the BangsaMoro Juridical Entity are unconstitutional, for the concept presupposes that the associate entity (BJE) is a state and implies that the same is on its way to independence,” the 89-page ruling added.

The voting, 8-7, may indicate that the Tribunal has reasserted its independence from Malacanang. But it also it is far from reclaiming it totally.

On one hand, it showed a group of justices who are independent from the appointing power.

On the other hand, the case further exposed a group of justices who show fidelity to Malacanang, a tight clique that the Palace could count on regardless of the legal issue. This group has the potential of solidifying its ranks next year, with seven vacancies in the SC.

Aside from Carpio-Morales, the majority included Chief Justice Reynato Puno, Justices Consuelo Ynares-Santiago, Antonio Carpio, Adolfo Azcuna, Ma. Alicia Austria-Martinez, Ruben Reyes and Leonardo Quisumbing.

Those in the minority were Justices Dante Tinga, Minita Chico-Nazario, Presbitero Velasco Jr., Antonio Nachura, Teresita Leonardo-de Castro, Arturo Brion and Renato Corona.

Quisumbing: Swing vote

We learned from sources privy to the deliberations that it was a case whose outcome could have gone either way, up to the last minute. During the voting Tuesday, it was Quisumbing who provided the swing vote.

Two weeks before the Tribunal voted, those in favor of dismissing the case for being moot and academic still outnumbered those pushing that the issue should be ruled on the merits, 9-6.

But a well-placed source in the Tribunal said the six minority justices saw a glimmer of hope when one of the justices who has always sided with government--Justice de Castro-- was surprisingly “vocal during the initial en banc deliberations that the case has to be discussed on the merits.”

Four days before Tuesday’s final voting, the ranks of those who wanted to declare the MOA-AD unconstitutional increased to seven when Justice Reyes filed his separate concurring opinion on the ponencia of Justice Carpio-Morales. Reyes left his vote prior to going on a sabbatical leave. Although Carpio-Morales was the assigned ponente or writer of the decision, a failure to get the majority to her side would relegate her decision to the minority.

Over the weekend, the Carpio-Morales group was counting on two more justices, to include de Castro, to boost their side. But an SC source, privy to the discussions, said it appeared that the Palace “whipped the two possible defectors back to line.”

Until 11 a.m. Tuesday, the balance of power was evenly split at 7-7 with Quisumbing still to declare his vote. Quisumbing, although he has lately been voting in favor of the administration, remains an enigma even to his colleagues, says a source privy to the goings-on in the SC. “He keeps his cards close to his chest, nobody has been able to predict him.”

When Quisumbing’s vote came in, two of the justices closely identified with Malacanang “were stunned,” says the source. Quisumbing’s vote sealed the unconstitutionality of the agreement. “They were so confident (they had the numbers) before the voting.”

One of the sources said Reyes, who has been voting for Malacanang in past cases, may have cast a “legacy vote.” Reyes retires on Dec. 18, two weeks before his mandatory retirement on Jan. 2, 2009.

Minority: moot and academic

Under the scuttled MOA-AD, the BJE would govern the new Moro ancestral domain, with its own police forces, judicial system, electoral system, financial and banking system, education, economic and civil service. The BJE was also empowered to enter into any economic cooperation and trade relations with other countries, as well as environmental cooperation agreements.

Petitioners against the MOA, including the local government units which would have been included in the BJE, claimed they were not consulted about the proposed agreement. Others questioned the constitutionality of the MOA-AD.

In striking down the MOA-AD, the Court said the commitment by the government panel that the Constitution would be amended to conform to the agreement rendered it fatally defective. ”Neither the GRP panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference in that process,” the ruling said.

The minority stood behind the argument of the government that the petitions should be dismissed for being moot and academic. The government has said it will no longer sign the agreement “in its present or any other form” following a strong public backlash.

But the majority, in denying the government’s motion to dismiss, said the case provides an exception to the “moot and academic principle” in view of 1) the grave violation of the Constitution involved, 2) the exceptional character of the situation and paramount public interest, 3) the need to formulate controlling principles to guide the bench, the bar and the public, and 4) the fact that the case is capable of repetition yet evading review.

as of 10/14/2008 7:07 PM