HIGH COURT RULES AGAINST MILF PEACE DEAL

C O N F I D E N T I A L SECTION 01 OF 02 MANILA 002338

SIPDIS

STATE FOR EAP/MTS

E.O. 12958: DECL: 10/15/2018
TAGS: PGOV PINR PREL PHUM KISL RP
SUBJECT: HIGH COURT RULES AGAINST MILF PEACE DEAL

REF: A. MANILA 02178 (MINDANAO PEACE PROCESS: SEEKING A
WAY FORWARD)

B. MANILA 01860 (SUPREME COURT DELAYS AGREEMENT)

Classified By: Ambassador Kristie A. Kenney
for reasons 1.4 (b) and (d).


1. (C) SUMMARY: In a significant setback for the Arroyo
administration, the Supreme Court on October 14 ruled by an
8-7 majority that the Memorandum of Agreement (MOA) on
ancestral domain between the Philippine government and the
Moro Islamic Liberation Front (MILF) was unconstitutional.
The issue had been pending since August 4, when the Supreme
Court issued a temporary restraining order stopping the
signing of the Malaysian-facilitated agreement in Kuala
Lumpur. The Supreme Court found that the provisions in the
MOA allowing the proposed Bangsamoro regional government to
exploit and derive revenue from the natural resources of the
new territory were contrary to the Constitution, and that
there was a lack of consultation that violated the right of
the people to information on matters of public concern.
While President Arroyo had repeatedly made clear that the
government would not move forward with the agreement in its
current form, the MILF insurgents have held out hopes of
rejuvenating the deal. We will monitor closely any reaction
from the Muslim insurgents in coming days. END SUMMARY.

SUPREME COURT FINDS AGREEMENT UNCONSTITUTIONAL
-------------- -


2. (C) Following the filing of petitions by several parties
challenging the legality of the MOA on procedural and
constitutional grounds, the Supreme Court issued a temporary
restraining order August 4 to stop the signing of the
agreement (ref B). Following that move, the Supreme Court
heard oral arguments on the issue on three successive
Fridays. After several weeks of deliberations, the Supreme
Court issued its final decision in the case on October 14,
finding the agreement unconstitutional. Although the text of
the decision had not yet been issued at the time of writing,
Supreme Court Acting Spokesperson Gleo Guerra told us that
the justices had found against the MOA on two grounds: 1)
provisions in the agreement creating a Bangsamoro Juridical
Entity entitled to utilize, develop, and explore the natural
resources of the new territory were contrary to the
Constitution, as that is an exclusive power of the national
government; and 2) there was a lack of consultation that
violated the right of the people to information on matters of
public concern, as well as state policy of full disclosure on
such matters.

DISSENT FINDS THE CASE MOOT
--------------


3. (C) According to Guerra, the seven dissenting justices
believed that the constitutionality question was moot, as the
Solicitor General had stated unequivocally during oral
argument (and key Presidential advisors have stated publicly)
that the government would not sign the agreement in any form
under any circumstances. Thus, since the agreement had not
been consummated and would not be consummated, there was no
longer a case in controversy, rendering the case moot.

OPPOSITION REACTION PREDICTABLE
--------------


4. (C) Opposition Senators welcomed the Supreme Court ruling
declaring the ancestral domain agreement unconstitutional,
noting it was a display of judicial independence. However,
they were concerned that the close 8-7 vote was easy to
overturn. Minority leader Aquilino Pimentel III was thankful
the high court did not "play footsies with Malacanang" on the
issue. For Senator Manuel Roxas, the decision "slammed the
door on the politics of adventurism" and rejected the
partitioning of country and backdoor attempts to revise the
Constitution. He also warned against a possible
"manipulation by the executive" to reverse the ruling.

GOVERNMENT'S NEXT STEPS
--------------


5. (U) For its part, the government was less forthcoming.
While the Palace had previously announced that it would not
sign the agreement irrespective of the Supreme Court
decision, Press Secretary Jesus Dureza stated immediately

MANILA 00002338 002 OF 002


after the decision that the Palace would leave it up to the
lawyers to decide what steps to take after the decision.

COMMENT
--------------


6. (C) While the Arroyo Administration has been at pains to
underscore that it will not pursue the MOA as currently
written, the MILF leadership has stressed repeatedly that it
considered the agreement a binding deal even before the
Supreme Court acted in August. We will closely monitor the
MILF's reaction in coming days on both the political and
military fronts. The Supreme Court deal is also a political
setback for the government, as it puts the Supreme Court
firmly on record against President Arroyo's centerpiece peace
initiative with the MILF. In particular, the decision that
the resource sharing provision of the MOA is unconstitutional
takes away one of the primary incentives for the MILF in
signing a final peace deal with the Philippine government.
This will complicate the Arroyo Administration's efforts to
forge an overall settlement and present the Administration
with an even more complex task with only 19 months left to go
in the Administration. As a side note, the ruling also
dispels the widely held belief that the President could count
on a majority of the Supreme Court. Both the original 15-0
decision to block the MOA and the current 8-7 decision make
it clear that on key issues -- particularly with a judicially
activist chief justice eyeing the presidential race in 2010
-- the government cannot count on carrying the day in the
highest court.
KENNEY