Comments on the GRP-MILF MOA from Another Blog

Atty. Bong Montesa, the Liberal party Director General who went on leave due to differences with the LP leadership on the issue of the GRP-MILF Memorandum of Agreement, made a comment on a statement I made during an interview on UNTV. Since he mentioned me and quoted my statements, I had to post a reply.

The Ateneo de Manila Law School professor (on leave) is the Executive Director of Institute for Autonomy and Governance (IAG), a political think-tank based in Cotabato City, Southern Philippines. He is also the legal counsel of the GRP Peace Panel.

Below is a portion of his blog post which mentioned me, followed by my reply:

He wrote:

"We are dealing here with a social problem and our toolkit must be beyond what the present Constitution provides. This is about policy. Let us propose a policy and then work out the needed changes in law and the constitution to make such policy a reality. It cannot be the other way around. We cannot say that all solutions must follow the present Constitution for that limits our capacity to solve the Bangsamoro problem.

I was listening to Cong. Ruffy Biazon over UNTV this morning and one of his arguments against the MOA on AD is that the President has a sworn obligation to “defend and protect the Constitution” ergo any intent to change or amend the Constitution is a violation of that sworn oath. That seems to be stretching the limits of constitutionality too much. The President has sworn to “protect and defend the Constitution”, a constitution which includes provisions of its very amendment. Changing the Constitution is part of the Constitution that the President is sworn to protect and defend."

I wrote:

Thank you for your comment on my statements during that interview in UNTV.

It was such a short interview, there was not enough time to elaborate on points. So I hope I will be given the privilege to respond here.

Perhaps my comment on the President’s oath may be seen as “stretching the limits of constitutionality too much”, but actually, from my point of view, I am trying to confine the MOA within the limits of my understanding of the text of the Constitution.

I am not a lawyer and I am not trying to pose as a legal luminary. My educational background is in the medical field, but being a three term member of the HOuse of Representatives, I believe I have enough experience dealing with the law for me to have a grasp of what the legal framework of this country says. Besides, every citizen is supposed to be a student of the Constitution, since it is the tie that binds all citizens of a country and the Rule that they must live by.

Having said that, I must admit I do not have a conclusion as to the constitutionality of the agreement per se. But I do have questions based on my reading and understanding of the Constitution vis-a-vis the MOA. Being a member of the Legislature and representing a district comprised of close to half a million citizens, I have the right and duty to ask questions about a matter that will affect the COnstitution I am sworn to uphold, and the country to which my constituents belong to.

While the MOA and the talks are between the GRP panel and the MILF, the matter of a just and lasting peace in Mindanao is not just a concern of the MILF, the indigenous peoples of Mindanao and the other citizens living therein, but it is also a desire and concern of all other Filipino citizens. Whatever ails Mindanao, ails the Philippines.

Going back to my comments on the President;s oath, which says, ” I do solemnly swear/affirm that I will faithfully and conscientiously fulfill my duties as President of the Philippines, PRESERVE and DEFEND its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation” ( not DEFEND and PROTECT, as stated in the post above), I used my literal understanding and avoided stretching the meaning of the text of the oath.

The dictionary defines PRESERVE as “To keep in perfect or unaltered condition; maintain unchanged”. DEFEND is defined as “To make or keep safe from danger, attack, or harm.” In interpreting this provision of the Constitution, I strictly confined myself within the meaning of the text, instead of stretching it, as commented above. To my understanding, the President is sworn to keep the Constitution in an unaltered condition, maintain it unchanged and keep it safe from attack until its very provision on amending it are availed of.

Indeed, the Constitution is a living document, allowing itself to be improved, through the appropriate procedure. My non-lawyer’s understanding of the Constitution’s provisions is that there are only three ways that amendments may be undertaken, that is, by a vote of three fourths of all the members of the Congress (a constituent assembly), a constitutional convention, and by an initiative of the People.

I noted that Article XVII, the Constitutional Provision on Amendments and Revision, also provided on who may propose or act on amendments or revisions of the Constitution. It said that the Congress, the members of a constitutional convention and the people are the ones who may propose changes in the Charter.

My non-lawyer’s unstretched interpretation of the text of the Constitutional provision on amendments is that the President does not propose changes to the Constitution, especially since the President’s oath is to PRESERVE and DEFEND it.

Other provisions in the Constitution which caught my attention in the diligent effort that I am undertaking to understand the whole issue are those that pertain to the rights of the indigenous people (which is the point of the MOA-AD). Two provisions come to mind:

Article XIV. Sec. 17, which says “The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.”

There is no doubt that government is obliged to provide for the protection of the rights of the indigenous people. I myself believe in that and consider it my Constitutional duty to work for that, because the Constitution says so.

The second provision is:

Article XII, Sec. 5, which says, “The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being.”

Again, it is clear that the State should protect the rights of the indigenous people. But the text of the second provision sets parameters on how the State will deliver on its obligation. It says, “subject to the provisions of this Constitution”. My non-lawyer’s understanding of the text is that any act of the State to protect the rights of the indigenous people should be within the bounds of the provisions of the Charter.

Meaning to say, if the Constitution says that there shall only be one police force (which it says in Article XVI, Sec. 6, then the State shouldn’t allow, or even offer, the creation of another security force (which the MOA provides).

These are only the perspectives of a non-lawyer. It is not a stretch of the meanings of the provisions of the Constitution but a reading of the charter’s text in simple terms. Perhaps the learned men of the law can provide me with a better interpretation which would show that I am mistaken.

Or better yet, the Supreme Court, which is mandated to interpret the law for everyone, as embodied in the Constitution should be left to do the interpretation.

But if there will be an opportunity for proponents of the MOA to clarify the issues, I would rather that such clarifications be done within the proceedings of an official body. That is the reason why I filed a resolution in the House of Representatives calling for an inquiry into the basis, purpose and prospects of the provisions of the MOA. It is not because I am blindly opposing the peace efforts in general and the MOA in particular, but it is because I would like to be enlightened so that I may be able to do my part in fulfilling the mandate to achieve peace in Mindanao and protect the rights of indigenous people.