Judicial Review of Peace Initiatives

In Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, the Supreme Court of the Philippines struck down a preliminary document that identified guideposts for future peace negotiations with the Moro Islamic Liberation Front. Separatists’ aspirations are unlikely to be embodied in existing Constitutions, since it is precisely because their aspirations are inconsistent with those of the majority that they are fighting against the State. As a result, peace agreements stretch Constitutions to make room for these aspirations. But when judicial review is invoked to check these agreements, peace agreements risk being declared unconstitutional. Few peace agreements then can survive judicial scrutiny because judicial review enforces the status quo, therefore judicial review makes attaining peace difficult or impossible.To avoid a legal dead end, I propose an approach to the review of peace agreements. We presume that they are valid and look beyond the provisions relating to the creation of autonomous regions. We should look to other constitutional values and judicial review should be undertaken with a view to ensuring that the goals of peace and tolerance are achieved. This approach skews the review process and places an extraordinary burden on those challenging the peace instrument as unconstitutional.This Paper was originally delivered at the 6th Asian Constitutional Law Forum with the theme “Constitutionalism in the Courts: Judicial Review and the Separation of Powers in Asia,” held at the National University of Singapore on December 10–11, 2015