BY AMADO P. MACASAET

THE Supreme Court vote was a tenuous 8-7 against the MOA AD. If one looked at the 36 violations of the Constitution seen by Associate Justice Antonio T. Carpio, one would have expected a unanimous ruling.

The seven dissenters led by Associate Justice Dante Tinga never saw it Carpio’s way. Yet the presumption is they did their job of opposing the majority ruling in defense of the Constitution, which as everyone knows is also in defense of President Arroyo’s propensity to violate the Fundamental Law.

The Supreme Court is almost always split over an issue. But when it becomes obvious that a ruling leaves the independence of the magistrates in doubt, democracy dies a bit. This was most clearly manifested in the 9-6 ruling in favor of the grant of executive privilege to the President.

The Court practically put on ice the controversial ZTE-broadband deal with that ruling. The Court prevented the President’s men, notably Romulo Neri, from telling the Senate the truth of what he knew.

In a separate concurring opinion on the MOA AD case, Carpio listed the 36 violations of the Constitution. If the Court had ruled in favor of the MOA-AD, the Constitution might not be worth the value of the paper it is written on.

The 36 violations of the Charter, listed by Carpio in his separate concurring opinion, are:

• Article 1 on the National Territory. During the oral arguments, Atty. Sedfrey Candelaria, principal counsel of the GRP panel, stated that this provision would have to be amended to conform to the MOA-AD.

• Section 3, Article II on the role of the Armed Forces of the Philippines as "protector of the people and the state." Under the MOA AD, the AFP’s role is only to defend the BJE (Bangsamoro Judicial Entity) against external aggression.

• Article III on the Bill of Rights. The MOA AD does not state that the Bill of Rights will apply to the BJE. The MOA AD refers only to the "internationally recognized human rights instruments" such as the United Nations Universal Declaration on Human Rights, International Humanitarian Law, and the United Nations Declaration on the Rights of Indigenous Peoples. No reference is made to the Bill of Rights or even to the Constitution.

• Section 1, Article VI on the Legislative Department. Legislative power shall no longer be vested solely in the Congress of the Philippines. Under the MOA-AD, the BJE shall "build, develop and maintain its own institutions" like a legislature whose laws are not subordinate to laws passed by Congress.

• Section 1, Article VII on executive power. Executive power shall no longer be vested exclusively in the President of the Philippines. The BJE shall have its own Chief Executive who will not be under the supervision of the President.

• Section 16, Article VII on the President’s power to appoint certain officials, including military officers from the rank of colonel or naval captain, with the consent of the Commission on Appointments. All public officials in the BJE, including military officers of any rank in the BJE internal security force, will be appointed in accordance with the BJE’s own basic law or constitution.

• Section 17, Article VII on the President’s control over all executive departments. The President will not control executive bureaus or offices in the BJE, like foreign trade missions of the BJE.

• Section 18, Article VII on the President as "Commander-in-Chief of all armed forces of the Philippines." Under the MOA-AD, the President will not be the Commander-in-Chief of the BJE’s internal security force. The BJE’s internal security force will not be part of the AFP chain of command.

• Section 21, Article VII on the ratification of treaties and international agreements by the Senate. This will not apply to the BJE which, under the MOA-AD, has the power to enter into economic and trade treaties with other countries.

• Section 1, Article VIII on judicial power being vested in one Supreme Court. Since the BJE will have "its own x x x judicial system," the BJE will also have its own Supreme Court.

• Section 2, Article VIII on the power of Congress to define and apportion the jurisdiction of lower courts. Under the MOA-AD, Congress cannot prescribe the jurisdiction of BJE courts.

• Section 5(2), Article VIII on the power of the Supreme Court to review decisions of lower courts and to promulgate rules of pleadings and practice in all courts. Under the MOA-AD, the BJE will have its own judicial system. Decisions of BJE courts are not reviewable by the Supreme Court.

• Section 5(6), Article VII on the power of the Supreme Court to appoint all officials and employees to the Judiciary. This power will not apply to courts in the BJE.

• Section 6, Article VIII on the Supreme Court’s administrative supervision over all courts and their personnel. Under the MOA-AD, the Supreme Court will not exercise administrative supervision over BJE courts and their personnel.

• Section 9, Article VIII on the appointment by the President of all judges in the Judiciary from nominees recommended by the Judicial and Bar Council. This provision will not apply to courts in the BJE.

• Section 11, Article VIII on the power of the Supreme Court to discipline judges of all lower courts. This power will not apply to judges in the BJE.

• Section 1(1), Article IX-B on the power of the Civil Service Commission to administer the civil service. Under the MOA-AD, the BJE will have "its own x x x civil service." The Civil Service Commission will have no jurisdiction over the BJE’s Civil Service.

• Section 2(1), Article IX-C on the power of the Commission on Elections to enforce and administer all election laws. Under the MOA-AD, the BJE will have "its own x x x electoral system" The Commission on Elections will have no jurisdiction over the BJE’s electoral system.

• Section 2(1), Article IX-D on the power of the Commission on Audit to examine and audit all subdivisions, agencies, and instrumentalities of the Government. Under the MOA-AD, the BJE can "build, develop and maintain its own institutions" without limit. The BJE can create its own audit authority. The Commission on Audit will have no jurisdiction over the BJE or its subdivisions, agencies, or instrumentalities.

• Section1, Article X on the political subdivisions of the Philippines. A new political subdivision for the BJE will have to be created.

• Section 4, Article X on the power of the President to exercise general supervision over all local governments. Under the MOA-AD, this provision will not apply to the BJE.

• Section 5, Article X subjecting the taxing power of local governments to limitations prescribed by Congress. Under the MOA-AD, the BJE shall have "its own x x x legislation." The BJE’s taxing power will not be subject to limitations imposed by national law.

• Section 6, Article X on the "just share" of local government units in national taxes. Since the BJE is in reality independent from the national government, this provision will have to be revised to reflect the independent status of the BJE and its component cities, municipalities and barangays vis-à-vis other local government units.

• Section 10, Article X on the alteration of boundaries of local government units, which requires a plebiscite "in the political units affected." Under paragraph 2(d) on Territory of the MOA-AD, the plebiscite is only in the barangays and municipalities identified as expansion areas of the BJE. There will be no plebiscite "in the political units affected," which should include all the barangays within a city, and all municipalities within a province.

· Section 15, Article X on the creation of autonomous regions within the framework of the Constitution, national sovereignty and territorial integrity of the Philippines. This will have to be revised since under the MOA-AD the BJE has all the attributes of a state.

· Section 16, Article X on the President’s power to exercise general supervision over autonomous regions. This provision will not apply to the BJE, which is totally independent from the President’s supervision.

• Section 17, Article X which vests in the National Government residual powers, or those powers which are not granted by the Constitution or laws to autonomous regions. This will not apply to the BJE.

• Section 18, Article X which requires that personal, family and property laws of autonomous regions shall be consistent with the Constitution and national laws. This will not apply to the BJE which will have its own basic law or constitution.

• Section 20, Article X on the legislative powers of the autonomous regional assemblies whose laws are subject to the Constitution and national laws. This provision will not apply to the BJE.

• Section 21, Article X on the preservation of peace and order within autonomous regions by the local police as provided in national laws. Under the MOA-AD, the BJE shall have "its own x x x police" to preserve peace and order within the BJE.

• Section 2, Article XII on State ownership of all lands of the public domain and of all natural resources of the Philippines. Under paragraph 3 on Concepts and Principles of the MOA-AD, ancestral domain, which consists of ancestral lands and the natural resources in such lands, does not form part of the public domain. The ancestral domain of the Bangsamoro refers to land they or their ancestors continuously possessed since time immemorial, excluding the period that their possession was disrupted by conquest, war, civil disturbance, force majeure, other forms of usurpation or displacement by force, deceit or stealth, or as a consequence of government project, or any voluntary dealings by the government and private parties. Under paragraph 1 on Concepts and Principles of the MOA-AD, the Bangsamoro people are the Moros and all indigenous peoples of Mindanao, Sulu and Palawan. Thus, the ancestral domain of the Bangsamoro refers to the lands that all the peoples in Mindanao, Sulu and Palawan possessed before the arrival of the Spaniards in 1521. In short, the ancestral domain of the Bangsamoro refers to the entire Mindanao, Sulu and Palawan. This negates the Regalian doctrine in the 1935, 1973 and 1987 Constitutions.

• Section 9. Article XII on the establishment of an independent economic and planning agency headed by the President. This agency is the National Economic and Development Authority. Under the MOA-AD, the BJE will have its own economic planning agency.

• Section 20, Article XII on the establishment of an independent monetary authority, now the Bangko Sentral ng Pilipinas. Under the MOA-AD, the BJE will have its own financial and banking authority.

• Section 4, Article XVI on the maintenance of "a regular force necessary for the security of the State." This provision means there shall only be one "Armed Forces of the Philippines" under the command and control of the President. This provision will not apply to the BJE since under the MOA-AD, the BJE shall have "its own x x x internal security force" which will not be under the command and control of the President.

• Section 5(6), Article XVI on the composition of the armed forces, whose officers and men must be recruited proportionately from all provinces and cities as far as practicable. This will not apply to the BJE’s internal security force whose personnel will come only from BJE areas.

• Section 6, Article XVI on the establishment of one police force which shall be national in scope under the administration and control of a national police commission. The BJE will have "its own x x x police" which is a regional police force not administered or controlled by the National Police Commission.

How the seven dissenting jurists interpreted the Constitution another way and failed to see these violations will be long remembered as one of the more malignant signs that have placed in doubt the independence of the Supreme Court.

The swing vote of Associate Justice Leonardo Quisumbing carried the day for the majority.

The concurrence of Quisumbing does not matter half as much as the fact that there are seven justices who supported the MOA AD. If the voting had gone the other way, the suspicion that the Court is losing its independence to the Executive Branch would have gained credibility.

The tenuous majority of one says a lot about the independence of the Court but the magistrates can always hide and protect themselves by claiming that dissension is part of due process.