BY EVANGELINE DE VERA

THE government has decided to abandon the controversial memorandum of agreement on ancestral domain that it had intended to sign with the secessionist Moro Islamic Liberation Front early this month.

Solicitor General Agnes Devanadera yesterday told the Supreme Court that the MOA would not be signed in its present form or "any other form."

Chief Justice Reynato Puno asked if the government had a change of position and whether this could be interpreted as "setting aside" the agreement.

Devanadera said: "The fighting in Mindanao continues to escalate to alarming proportions, that’s why the executive department has decided to reassess its decision on the signing of the MOA-AD that it will not be signed in its present form, or in any other form."

It was unclear if the government plans to come out with another agreement covering the ancestral domain issue. No Malacañang official could be reached for clarification.

Press Secretary Jesus Dureza only said: "No matter what the SC will ultimately decide, the government will not sign the MOA."

The Palace, in announcing last week that it has decided not to sign the MOA in its current form, said it would be holding consultations with all stakeholders and come up with a revised agreement.

The government has tagged the MOA-AD a "breakthrough" in the seven-year-old peace negotiations as they said it would pave the way for the final talks.

The agreement, among others, will create a Muslim homeland that includes areas not covered by the Autonomous Region in Muslim Mindanao. The proposed homeland, to be called the Bangsamoro Juridical Entity, will have its own judicial system and police force, and can enter into economic agreements and establish trade relations with other countries.

The Supreme Court is hearing arguments on petitions questioning the constitutionality of the agreement.

The OSG earlier asked the tribunal to render the petitions moot in view of the government’s decision not to sign it "in its current form."

But the petitioners want the high court to rule on their motions as they said the government might only revise contested provisions and come up with another agreement with the MILF.

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

She said the decision not to sign the MOA with the MILF "in any other form" was reached because of the common fear that although the present agreement will not be signed, it might morph into another MOA.

‘MOA MERELY A LIST’

Devanadera said the MOA-AD is not yet a final document. She said it is just a listing of points of consensus between the two panels.

Devanadera said there was no longer any justiciable issue for the Court to rule on because the MOA-AD is non-existent and the government has abandoned all efforts to sign the agreement in its present form, or in any other form.

However, she said this does not mean the government is abandoning its duty to search for means to achieve lasting peace in Mindanao.

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

He also asked Devanadera to submit the final draft of the MOA and documents on the authority to travel Malaysia given to government peace panel negotiators. The MOA was scheduled for signing August 5 but the Supreme Court issued a temporary restraining order.

CHARTER CHANGES NEEDED

Also at the oral arguments, Sedfrey Candelaria, legal counsel of the government panel negotiating with the MILF, told justices that several provisions in the MOA will require revisions in the Constitution.

On questioning by Associate Justice Antonio Carpio, Candelaria said changes in Articles 1, 2 (3) and 10 of the Constitution, as well as the ARMM organic law will have to be undertaken

Article 1 provides for the definition of national territory; Article 2, Section 3 provides for the role of the Armed Forces of the Philippines in securing the sovereignty of the state and the integrity of national territory; and Article 10 provides for the general provisions for local governance.

"We told them (MILF) that we can’t commit to Charter change unless we go through legal processes. We are not abdicating our rights under the Constitution," he said.

‘DRASTIC OVERHAUL’

He said that under the MOA-AD, the country is compelled to change its Constitution to conform with the provisions in the agreement as would have been demanded and required by international laws. He said the agreement compels the country to commit to international obligations.

Carpio required Candelaria to put in the GRP’s memorandum the constitutional provisions that will be affected or will have to be amended if the MOA is implemented. He berated the GRP counsel for not informing the peace panel about the affected provisions in the Constitution.

He said that in effect, the MOA will prevail over the Constitution. "You agree that the MOA will require drastic overhaul of the Constitution. So many provisions of the Constitution will have to be revised."

Candelaria said the MOA might require changes in terms of the autonomy of Muslim Mindanao as well as constitutional provisions on the composition of a single police force that is national in character.

NOT BINDING

He further said that under the MOA, the commander-in-chief would still be President Arroyo. He added that they have communicated to the MILF panel that the government will have to amend the Constitution to conform to the MOA, while they are still just at the preliminary stages of the negotiations. Thus, the parties’ signing of the MOA-AD is not binding to the government.

"We never acceded that it’s a final document. The term ‘treaty’ here was used generically. We never considered that we were dealing with another sovereign state. The GRP panel has always maintained that it will not be binding under international law," Candelaria said.

Associate Justices Carpio and Adolfo Azcuna said whether or not the MOA-AD is considered a final document, it has the nature of an international obligation.

This is because the BJE, under the MOA, is being given the authority to conduct diplomatic relations with a foreign country, and the pact was witnessed by foreign nations.

REPERCUSSIONS

Azcuna and Carpio said the fact that the botched signing was to be held in Kuala Lumpur, attended by foreign officials including of the US and the Organization of Islamic Conference, already gave the MOA international character.

Thus, the justices said, the country would be bound to enforce it even if it had to change the Constitution, triggering irreversible repercussions.

In fact, they noted, it would already be out of the hands of the Philippine government or the judiciary should the MILF or Malaysia, which sat in the negotiations as facilitator, decide to sue the government for breach of contract and bring the case up before the International Court of Justice.

"You are risking the dismemberment of the country in your conjecture that this is not an international obligation. But the Court will not decide on that; it will be decided by the other tribunal over whom we have no control," said Carpio.

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."

CONCESSION POINTS

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

Azcuna asked if the government panel had 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 GRP panel was authorized 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, despite the government’s belief that the MOA was only intended for "domestic" purposes.

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

Chief presidential legal counsel Sergio Antonio Apostol said the government panel was "given authority to negotiate but not full authority to sign."

He said this means even if the government and MILF signed the MOA last August 5, it would still be an "invalid document because they (GRP panel) have no authority to sign."