Supreme Court halts Moroland deal

SC ignores gov’t plea of executive privilege

By Tetch Torres, Leila Salaverria, Michael Lim Ubac, Christian V. Esguerra, Nikko Dizon, Philippine Daily Inquirer
First Posted 02:07:00 08/05/2008

MANILA, Philippines—The Supreme Court, ignoring a new plea for executive privilege to keep diplomatic negotiations secret, stopped the signing on Tuesday in Malaysia of an agreement that critics feared could lead to an independent Bangsamoro state.

Jose Midas Marquez, the high court’s spokesperson, announced that the tribunal by a unanimous decision Monday issued a temporary restraining order (TRO) to preserve the status quo after an en banc session called to act on petitions filed by local officials in Zamboanga City and North Cotabato.

The petitioners from North Cotabato are Governor Jesus Sacdalan and Vice-Governor Emmanuel Piñol. Those from Zamboanga City are Mayor Celso Lobregat, and Representatives Isabelle Climaco and Erico Basilio Fabian.

The local officials questioned the memorandum of agreement (MOA) establishing an expanded Bangsamoro homeland hammered out during negotiations between the government and the Moro Islamic Liberation Front (MILF) and scheduled to be signed in Kuala Lumpur Tuesday. The local officials also demanded a copy of the agreement.

Marquez said the court ordered the solicitor general to furnish the officials a copy of the final draft of the MOA not later than Aug. 8 and scheduled oral arguments on Aug. 15 on the officials’ plea to be excluded from the deal. The parties were asked to submit comments within five days.

“When the signing has taken place … rights might be violated. So to prevent violation of certain rights of the people, the court decided to issue the TRO,” Marquez said.

“We submit to the sound discretion of the Supreme Court,” Press Secretary Jesus Dureza told reporters. “It is the ultimate arbiter of issues and so the signing will have to be canceled.”

Executive Secretary Eduardo Ermita said the court action should not be seen as a “setback” to the Arroyo administration. “It’s just a resetting [of the signing]. This is one of the dynamics of democracy,” he said.

MILF calls move a ‘setback’

“It’s a setback, but we will let the panels decide on whatever measures they want to take to address this recent development,” MILF spokesperson Eid Kabalu told reporters. He said the 12,000 MILF fighters remained committed to ending the separatist rebellion that has claimed more than 120,000 lives in Mindanao over the past four decades.

The government peace panel, in a 26-page comment filed earlier Monday by Solicitor General Agnes Devanadera, opposed the petition for a TRO, invoking executive privilege in an attempt to keep negotiations and the draft MOA secret.

Executive privilege

“These negotiations include definite military, national security and diplomatic concerns, and have involved the presence of a foreign mediator. This being so, the entire process—the negotiations involving the said MOA and the draft documents thereof resulting from said negotiations—is covered by the doctrine of executive privilege which prevents the disclosure of information that could subvert military or diplomatic objectives,” the panel said.

The government lawyers said while it recognizes the right of the petitioners to information, “they do not have an unfettered access to everything as these rights are subject to certain limitations.”

“Notably, there are matters which, despite their being of public interest and concern, are considered privileged in nature,” Devanadera said.

It was the third time in one year that the Arroyo administration had invoked executive privilege.

The court earlier upheld the President’s right to keep diplomatic negotiations secret when it supported former Socioeconomic Planning Secretary Romulo Neri’s decision not to answer questions during a Senate hearing on an alleged bribery attempt surrounding the scuttled $329-million broadband network project with China’s ZTE Corp. and rejected demands to release negotiation documents on the Japan-Philippines Economic Partnership Agreement.

Foreign Secretary Alberto Romulo departed for Kuala Lumpur hours before the court handed down the TRO to witness Tuesday’s scheduled signing along with his Malaysian counterpart Rais Yatim. Malaysia brokered the peace negotiations.

Presidential Peace Adviser Hermogenes Esperon Jr. and chief government negotiator Rodolfo Garcia also left for Malaysia without waiting for the outcome of the court hearing on the complaint by the Zamboanga City and North Cotabato officials that they were not consulted on the inclusion of their areas that would form part of the territory of the Bangsamoro Juridical Entity (BJE).

Copies of the MOA were circulated during a meeting of retired generals and leaked to reporters at the weekend, but the document itself has not been officially released.

Emotions get in the way

In contesting the TRO, the peace panel said North Cotabato would not be included in the expanded Autonomous Region in Muslim Mindanao (ARMM) without the consent of its residents in a plebiscite.

“Petitioners do not stand to suffer any irreparable or material injury as the final decision on whether they shall be part of the expanded ARMM or not belongs to the people of North Cotabato,” the peace panel said.

The panel said that consulting the people did not mean they should be involved in every step because if this was followed, then “nothing would get done as numerous interests and heightened emotions would get in the way of compromise.”

It said the plebiscite that would be held after the signing of the MOA was sufficient consultation.

North Cotabato officials filed the first petition questioning the MOA two weeks ago. Monday, Zamboanga City officials joined the petition.

Zamboanga City Representatives Fabian and Climaco and Mayor Lobregat said the government’s peace panel should be compelled to give them copies of the draft MOA.

The officials asked that Zamboanga City be excluded from the Bangsamoro homeland or that the MOA be declared null and void if it would be signed.

According to them, the draft of the MOA was a matter of public concern. They said that the ancestral domain issue referred to the claiming of ownership of certain areas, and possibly even private property, which was why Zamboanga residents should be informed about the deal.

Travesty of justice

“The nondisclosure of the provisions of the MOA has deprived the people of its right to information and to participate in the decision-making process. This is a blatant violation of the constitutional rights of the people,” the Zamboanga officials said.

The officials also said national security could not be used as an excuse to withhold the MOA from them.

“To hide behind the mantle of national security so that the people would remain in the dark on matters affecting their lives and properties is a travesty of justice and of the constitutional rights of the people,” they said.

The MOA calls for an expanded ARMM and grants the BJE its own internal security force, a system of banking and finance, civil service, education and legislative institutions, full authority to develop and dispose of minerals and natural resources, according to a draft of the document secured by the Philippine Daily Inquirer (parent company of

The BJE also will be able to send trade missions abroad and enter into international agreements.

Administration officials have rejected criticism that the MOA amounted to ceding a portion of its territory to the MILF and granted the expanded Moro homeland the status of a state.

Dureza welcomed the TRO.

“We are confident that the Supreme Court will uphold the position of the panel in crafting this momentous and historical agreement that will address the longstanding problems of Mindanao and the country as a whole,” he said.

TRO a relief

Dureza, who had served as peace panel chair in previous talks with the MILF, even said that the TRO was a “relief.”

“This will allow a dispassionate, objective discussion of the merits of the issues that surround the said ancestral domain agreement. So it might be good that at this early stage, the Supreme Court will be part of that due diligence effort in taking a look at this agreement in its totality and also take a look at its provision,” he said.

Dureza also said he had told the President about the court action and she welcomed it as an opportunity to ventilate the issues.

Rep. Fabian, who filed the petition against the deal, said the ruling was “very good news for our people down south” who opposed the draft accord.

“We have won the first step,” said North Cotabato Vice Gov. Piñol. “This is an important lesson for government peace panels, that on matters that affect people’s rights, they must be consulted first.”

Former President Joseph Estrada also welcomed the TRO. “We all desire peace in Mindanao but it must not be obtained at the expense of our territorial integrity, and certainly not by methods that desire transparency and are in apparent haste,” he said.

Gen. Alexander Yano, chief of staff of the Armed Forces of the Philippines, said the AFP was ready to respond to any security threat that might result from the court’s TRO. He said the military was closely monitoring developments.

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