Disappointing SC denial of MOAtions for reconsideration

(A tale of two very differently treated cases) By Soliman M. Santos, Jr. WITH due respect, as we are supposed to say, the Supreme Court’s one-page resolution of November 11 (but released only on November 21) summarily “deny(ing) with finality” the two Motions for Reconsideration of its October 14 Decision, which by an 8-7 vote declared as “contrary to law and the Constitution” the initialed but unsigned final draft of the GRP-MILF Memorandum of Agreement on Ancestral Domain (MOA-AD), is very disappointing, to say the least. According to a news report on the just released resolution, the SC reasoned therein that it had already passed on the “basic issues” and that “no substantial arguments were presented to warrant the reversal of the questioned decision.” The disappointing nature of the SC resolution can be taken on several levels. But first it has to be pointed out that the two MRs came from several Bangsamoro civil society organizations which were intervenors in the MOA-AD case, intervening in support of the respondent GRP Peace Panel, in effect in support of the proposed MOA-AD and the unfinished GRP-MILF peace negotiations. One MR of 49 pages was filed by the Muslim Legal Assistance Foundation, Inc. (MUSLAF) on October 31. The second MR of 73 pages plus 19 documentary annexes was filed jointly by the Consortium of Bangsamoro Civil Society (CBCS) and the Bangsamoro Women Solidarity Forum, Inc. (BWSF) on November 5. [The GRP Peace Panel and its co-respondent government officials, represented by the Solicitor General, did not itself file a MR but a “Constancia,” i.e. a manifestation as a matter on record, expressing continuing concern about SC encroachment into executive power.] In their MR, the CBCS-BWSF stated at the outset that “The members of the Court should do what great minds and great hearts should do, at least pause to reconsider. This includes listening to the muffled voices of the aggrieved Bangsamoro.” The CBCS-BWSF then pointed out that, after all, the several Bangsamoro civil society organization intervenors “were not (allowed to be) heard during any of the three oral argument hearings [on August 15, 22 and 29]. Their Memorandums and arguments are not even referred to in the Decision, showing that these were probably not even read.” It was as if the Bangsamoro were invisible to the SC. In contrast, it heard on oral argument three petitioners (North Cotabato, Zamboanga City, and Iligan City) and two of their supporting intervenors (former Senator Drilon, and incumbent Senator Roxas), all representing Filipino Christian majority interests. All five of their counsels were ranged in oral argument against the Solicitor General representing basically the Executive Department of the Philippine government, which also had to cater to its Filipino Christian majority constituency. How about the Bangsamoro -- where are they in this argumentation? Are they not also key stakeholders here, whose Bangsamoro problem the peace negotiations are supposed to solve? The MUSLAF and CBCS-BWSF MRs were therefore in essence an attempt to get the Bangsamoro voice heard by the SC, while there was still a chance in the MOA-AD case. Unfortunately, it has been to no avail, and in a very disappointing manner. The SC went on recess from November 1 to 9, returning back to work on November 10. And then on November 11, barely a day after returning to their backlog, it already issues a one-page resolution denying the two MRs with finality. Strangely this one-page resolution takes all of 10 days to be released on November 21. More strangely was the barely one day to go through and digest the total of 122 pages of the two MRs. The normal, usual or regular course for dealing with MRs in a major case would be to require or allow the other side to comment or oppose within a reasonable time like 10 to 15 days (the latter being the reglementary period itself to file a MR), and then consider the matter submitted for resolution -- which would or should then come as a matter of course and of time. What if, on November 11, the SC instead summarily granted, not denied, the two MRs? You can imagine the all the sound and fury that would be raised by the petitioners and their supporting intervenors -- probably a reprise of all the hue and cry that occasioned the Temporary Restraining Order (TRO) last August 4 and the Decision itself last October 14 against the proposed MOA-AD. You can imagine their shrill invocation of the sacrosanct constitutional rights to due process and fair hearing in judicial proceedings. Alas, it seems that these same rights do not apply for the equal protection of the Bangsamoro. A contrasting case in point is the Mining Act Case (445 SCRA 1) where the SC reversed itself (from ruling 8-5-1 “unconstitutional” to 10-4-1 “constitutional”) within 2004, on reconsideration from its Decision of January 27 to its Resolution of December 1. In that case, the Chamber of Mines of the Philippines (CMP) was allowed even after the initial Decision, to intervene, to file a MR, and then even to be heard on oral argument. What does the mining industry have that the Bangsamoro does not have to be given that kind of due process and fair hearing, if that was even due or fair at all, including to the therein lead petitioner La Bugal-B’laan Tribal Association, Inc.? Why does the protection of the law seem more equal for big business and the mining industry than for the Bangsamoro and the indigenous peoples? An investigative journalist report on the inside story of that “Goliath Win for Mining” provides some answers. According to this report, “it’s clear that the High Court bent its rules to accommodate the chamber [CMP] as intervenor in the case.” What soon after turned the tide in there was the oral argument of influential former SC Justice Florentino Feliciano on behalf of the CMP. But both Feliciano and the CMP could not have come into the picture there without the support of an “advocate” within the SC -- then Associate Justice Artemio Panganiban “who relentlessly prodded his colleagues to let the Chamber of Mines air its side,” especially through an unprecedented oral argument during the reconsideration stage of the case. And then Panganiban eventually became the ponente (writer) of the new majority Resolution of December 1, 2004. Going back now to the MOA-AD Case, the Bangsamoro simply did not have a Feliciano advocating for them in oral argument and a Panganiban “advocating” for them within the SC. Instead, it would be fair to infer (alliteration intended) that there was within the SC an “advocate” who relentlessly prodded his colleagues to issue the early TRO last August 4 and also to issue the early denial of the two MRs last November 11. It is interesting to note that the ponente of the Decision of October 14 in this case, Associate Justice Conchita Carpio Morales, was the same ponente of the Decision of January 24, 2004 in the afore-mentioned Mining Act Case. She must have also made sure that reconsideration history did not repeat itself. Interestingly also, former Chief Justice Panganiban (who was on opposite sides with Justice Morales in the Mining Act Case) was one of those who had publicly asked the SC to “Decide the MOA issues fully” and who later publicly celebrated the SC Decision as a “Victory for the Constitution.” Not coincidentally, he, the mining industry and big business were all on the same side on the MOA-AD issue. And how about media and its investigative journalism sector – will they bother to connect the dots in the MOA Case like they did in the Mining Act Case? How easy it seems for the SC and its Justices to flip-flop even on constitutional principles when it comes to different issues and interests. In then Justice Panganiban’s Epilogue of his 245-page Resolution of December 1, 2004 in the Mining Act Case, he said, among others: “Verily, under the doctrine of separation of powers and due respect [that term again!] for co-equal and coordinate branches of government, this Court must restrain itself from intruding into policy matters and must allow the President and Congress maximum discretion in using the resources of our country and in securing the assistance of foreign groups to eradicate the grinding poverty of our people and answer their cry for viable employment opportunities in the country…Let the development of the mining industry be the responsibility of the political branches of government. And let not the Court interfere inordinately and unnecessarily.” And how about with the development of the peace process to resolve our internal armed conflicts and address their root causes, the context of the MOA-AD Case? It is so easy for the SC, in its one-page Resolution last November 11 summarily denying the two MRs of its Decision on the proposed MOA-AD, to resort to the hackneyed formula of saying it had already passed on the “basic issues” and that “no substantial arguments were presented to warrant the reversal of the questioned decision.” It is clear that the SC and some very strong anti-Bangsamoro and anti-peace forces do not want to be bothered with this matter any more, and so the quick hammering of the final nail on the coffin of “thinking out of the box” in future peace negotiations. In their haste (to use their own critique about the forging of the MOA-AD) to do this during what should be a reconsideration stage of the case, they have also delivered the clear message that the Bangsamoro have no voice in these judicial proceedings which have truly become an “internal matter” of the Filipino Christian majority. Granting that the SC had already passed on the “basic issues” and that “no substantial arguments were presented to warrant the reversal of the questioned decision,” couldn’t it have at least shown more sensitivity to the Bangsamoro by even going through the motions of giving their intervening representatives a fair hearing on their MRs even if eventually these would likewise be struck down like the proposed MOA-AD? But a fair and good enough reading of the two MRs totaling 122 pages of the Bangsamoro civil society organization intervenors will show that, on the contrary, substantial arguments were presented to warrant the reversal of the questioned decision. The CBCS-BWSF MR argued, among others, that the very logic of the Decision itself, particularly its recognition that the negotiated solutions to an armed conflict may require changes to the Constitution, militates against the wholesale declaration of the proposed MOA-AD as “unconstitutional.” It argued that this is not just a matter of executive power and separation of powers but also of constitutional policy, principles and rights which make for a strong constitutional mandate for peace. The MUSLAF MR, on the other hand, argued mainly from the need to resolve the MOA-AD issue through a resort to international law, the generally accepted principles of which are anyway adopted as part of the law of the land under the Constitution. Whether we agree or not with these different lines of argument coming from Bangsamoro representatives, they certainly deserve more than a one-page resolution of summary denial. Be that as it may, the two MRs are there as the Bangsamoro voice of dissent in the case record, for whatever reference need of posterity, including the judgment of history. In ending, it might be instructive to quote from Justice Morales’ own dissent to the new majority Resolution of December 1, 2004 in the Mining Act Case: “The task of reclaiming Filipino control over Philippine natural resources now belongs to another generation.” The task of another generation, if we must speak of posterity -- that may as well be said too of finding a solution to the Bangsamoro problem, after the finality of the SC Decision on the proposed MOA-AD, which was moving well toward that solution when stopped dead on its tracks. Despite that final resolution in the MOA-AD Case, it is not good to end on a pessimistic or resigned note. So, I quote the text message of a leading member of the dissolved GRP Peace Panel in reaction to that final resolution: “Disappointing indeed. Am sure though that our vindication and that of the Bangsamoro will come someday. Damn the torpedoes!”