PALACE-SENATE ACCORD ON TREATIES

President Gloria Macapagal Arroyo has agreed in principle that henceforth, all negotiating panel for treaties like the controversial MOA-AD should include at least one member of the Senate Foreign Relations Committee.

Sen. Miriam Defensor Santiago said that the accord was reached, when she and President Arroyo discussed the constitutional issues arising from the MOA-AD and the Jpepa.

“President Arroyo accepts that since the Senate has to concur with her ratification, the Senate should play an active role in treaty negotiations, at least with respect to constitutional and other issues,” Santiago said.

Santiago said that at a meeting in Malacañang last Friday, August 29, President Arroyo said she had issued instructions that the MOA-AD shall not be signed at all.

“That will preempt the declared intent of some Christian and Ilaga leaders in Muslim Mindanao to arm themselves, in anticipation of Muslim marauders in their communities,” the senator said.

Santiago said that under the Vienna Convention on the Law of Treaties, care should have been taken in drafting the MOA.

“If signed, the MOA would become part of the preparatory documents that constitute the context of any treaty. As part of the context, it is considered as a guide to the interpretation of the treaty itself. Thus, it is significant,” she said.

Santiago said the mere terminology used – “Memorandum of Agreement” – was already unfortunate.

“The title of the document should have been more neutral. Since it was so unequivocal, it immediately raised a furor,” she said.

The Senate said that even if the MOA is characterized as a political question, the Supreme Court would still have the power to acquire jurisdiction, if it can be shown that there was grave abuse of discretion on the part of executive officials.

“In the United States, it has been a long-standing practice to invite senators belonging to the Senate foreign relations committee to join the negotiating panel, so that the senators can anticipate what problems the treaty might raise in the Senate. Thus, verbal booby traps can be avoided,” she said.

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MIRIAM OK WITH LUMAD AUTONOMOUS REGION

Sen. Miriam Defensor Santiago, a constitutional law expert, said that the Constitution allows Congress to pass a law creating a Lumad Autonomous Region.

“In fact, the Constitution not merely allows but orders the creation of autonomous regions in Muslim Mindanao. However, the Constitution does not say that the autonomous regions shall be confined to Muslim areas only,” she said.

Santiago said that a bill embodying the proper organic act has to be filed in Congress, and should first show compliance with the constitutional requirement that the Lumad share “common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics.”

The senator said that a Lumad Autonomous Region is also supported by the constitutional policy that “the State recognizes and promotes the rights of indigenous cultural communities.”

In another development, Santiago said that it is only the Supreme Court which can decide whether to suspend proceedings questioning the constitutionality of the MOA-AD which creates the Bangsamoro Juridical Entity.

“The American experience is not applicable, because the cases were suspended during the civil war, and then during a world war. What we have in Mindanao is merely an insurgency,” she said.

Santiago said that the petitioners should respect President Arroyo’s statement that the government would renegotiate the MOA-AD with the MILF, thus rendering the petition moot.

“While the power to determine foreign policy is shared by the President and the Congress, it is only the President who speaks on behalf of the entire country in foreign affairs. It would be unwise to preempt her,” she said.

Santiago also stressed that greater autonomy for the Bangsamoro, even under a federal system, would not give them the right to secede from the Philippines .

“The Constitution explicitly provides that autonomous regions shall operate within the framework of the Constitution, national sovereignty, and territorial integrity,” she said.

Santiago said that it was “ill-advised” for the GRP panel to agree to the term “Memorandum of Agreement” or MOA.

“The GRP Panel should have insisted on the term ‘Memorandum of Understanding,’ or MOU. On the one hand, an MOA normally indicates an intent to be bound. On the other hand, an MOU is normally a set of unilateral interpretations of a treaty under negotiation,” the senator said.

Santiago said that if the Supreme Court proceeds to rule on the constitutionality of the MOA-AD, it will consider two factors: the content of the MOA; and the evidence of the intent of its makers.

“In reporting on the development of autonomous regions, we should avoid using the international law term ‘self-determination.’ It refers merely to decolonization. Instead, we should use the constitutional law term ‘autonomous region.’ It refers to the territorial integrity of our country,” she said.