Part 4 of a series

GENERAL SANTOS CITY (MindaNews/8 Nov) — Could the Court reconsider its thinking and decision? 

IV. Inconsistencies

The Court struck down the MOA-AD not only for being unconstitutional but also for being inconsistent with or contrary to R.A. No. 9054, the Organic Act of the ARMM, and R.A. 8371, the IPRA or Indigenous People’s Rights Act as well as the United Nations Declaration on the Rights of Indigenous Peoples. The facts supporting this decision may not be disputed but some flaws and inconsistencies invite perusal.

The MILF is dissatisfied with R. A. 9054 and the ARMM so that in the MOA-AD it is proposing a new autonomous region, the BJE. Why should the MOA-AD be struck down partly for being inconsistent with the ARMM and its organic law? Necessarily, they have to be different since the BJE is being proposed as an improvement of or an alternative to the ARMM.

The ancestral domain in the MOA-AD is the territory of the BJE, the extent of its political jurisdiction and the source of its economic existence. Why should it be restricted to the IPRA when its purpose and the concept of ancestral domain are different?

Curiously, though, it may be asked: How critical are the inconsistencies discussed by the Court pertaining to R.A. 9054, R.A. 8371 and UN DRIP?

“Bangsamoro People”

The Court found the definition of “Bangsamoro people” in the MOA-AD inconsistent with that in R.A. 9054. It ruled: “Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of “Bangsamoro people” as used in the MOA-AD.”

In Consensus (Paragraph) 1, Concepts and Principles of the MOA-AD, “Bangsamoro people” is extensively defined:

(a). Essentially: “It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoro.”

(b). Historically: “The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu Archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood.”

(c). Inclusively: “Spouses and their descendants are classified as Bangsamoro.”

(d). Optionally: “The freedom of choice of the Indigenous people shall be respected.”

In Article X, Section 3 of R.A. 9054, the “Bangsamoro” is “Moro” or “Muslim”. It states:

As used in this Organic Act, the phrase “indigenous cultural community” refers to Filipino citizens residing in the autonomous region who are:

(a). Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of the national community; and

(b). Bangsa Moro people. These are citizens who are believers in Islam and who have retained some of their own social, economic, cultural and political institutions.

The Court commented that “Bangsamoro” as used in the MOA-AD “sharply contrasts with that found in Article X, Section 3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples”.

Is the Court correct?

Flawed

Definition is generic. It generally distinguishes a class or group (genus) and its members from other classes or groups and their members. The Court must be aware of this.

However, it obviously did not consider the flaws in the definitions in R.A. 9054. Look closely. “Tribal people” and its “member tribes”, as defined, are not distinguishable from “slum dwellers” and “poor rural communities”. “Bangsa Moro people”, principally “believers in Islam” (“Moro” or “Muslim”), has attributes not distinguishable from tribal people – who also “have retained some of their own social, economic, cultural and political institutions”.

“Bangsamoro” was coined by the Moro rebel leaders in the late 1960s as their identity and that of the Moro people and others sympathetic to their cause. Some in the media used “Bangsa Moro” and until today the two could still be interchanged. Congress used the second form. By its nuances known to the Moro Front leaders, “Bangsamoro” must be distinct from “Bangsa Moro”.

The Court is wrong. There is no “lumping together” of identities in the MOA-AD. On the other hand, the Court has confused “Bangsa Moro” with “Bangsamoro”, presuming they are the same. While the Court is confused, in either the MOA-AD or R.A. 9054, the distinction is clear.

In the MOA-AD, “Bangsamoro people” consists of “all Moros and all indigenous peoples of Mindanao. “Bangsa Moro” in R.A. 9054 is “Moro” in MOA-AD. “Tribal peoples” in R.A. 9054 is “indigenous peoples” in MOA-AD. Generically, “Indigenous cultural community” in R.A. 9054 is “Bangsamoro” in MOA-AD.

Viewing it from another angle may help the Court clear its confusion.

MOA-AD viewpoint: The Bangsamoro people consists of the Maranaos, Maguindanaos, Tausugs, etc. (Moros) and the Manobos, Blaans, Tedurays, etc. (indigenous peoples).

R.A. 9054 viewpoint: The indigenous cultural community consists of the Maranaos, Maguindanaos, Tausugs, etc. (Bangsa Moro) and the Manobos, Blaans, Tedurays, etc. (Tribal peoples).

Indigenous

Another question may arise: In the MOA-AD, the Moro is distinct from the indigenous peoples. Is the Moro indigenous? Certainly! As class names, the Bangsamoro and indigenous cultural communities are the same.

The Court’s concept of “indigenous peoples” essentially applies to the Moro tribes and the indigenous or tribal peoples. It states:

“Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as international, regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger governing society. These groups are regarded as “indigenous” since they are the living descendants of pre-invasion inhabitants of lands now dominated by others.”

It continues: “Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest. Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aborigines of Canada.”

Consensus (Paragraph) 1, Concepts and Principles is consistent with this concept. However, as already pointed out, the definitions in Article X, Section 3 of R.A. 9054 do not distinguish the “Tribal peoples” and “Bangsa Moro” from slum dwellers and poor rural communities. Why strike down the MOA-AD because its correct definition of “Bangsamoro” is inconsistent or “sharply contrasts” with the flawed definitions in R.A. 9054?

UN DRIP

The Court has not pointed out any other inconsistency – or sharply contrasting provisions – of the MOA-AD and R.A. 9054. Surely there should be others. However, to show further that the MOA-AD, as presently worded, cannot be reconciled with laws, the Court lengthily referred to the UN DRIP (United Nations Declaration on the Rights of Indigenous Peoples).

Pursuant to Article II, Section 2 of the Constitution stating that the Philippines “adopts the generally accepted principles of international law as part of the law of the land”, the Court recognizes the UN DRIP adopted by the UN General Assembly on September 13, 2007 with the Philippines as among the 143 signatories. It applies to the Philippine indigenous peoples.

The Decision quoted Articles 3, 4 and 5 of UN DRIP recognizing “the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government”, noting that this only means right to “internal self-determination” – not “external self-determination” or secession. Comparing the three articles to the Concepts and Principles of the MOA-AD would is a revelation.

Article 3: Indigenous peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development. (Emphasis by the Court)

Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous function. (Emphasis by the Court)

Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

The Court also quoted some of the UN DRIP articles (Articles 8, 21, 26, 30, 33, 37 and 38) that particularly define “the extent of self-determination”. They closely and positively compare with the MOA-AD.

The Court concluded:

“Assuming that the UN DRIP, like the Universal Declaration of Human Rights, must now be regarded as embodying customary international law … the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD.” Of course! UN DRIP, like any other international laws are persuasive, not coercive.

Then, the Court qualified: “Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the different States.” Alluding to the MOA-AD, it enumerated two instances:

The UN DRIP does not require that “States now guarantee indigenous peoples their own police and internal security force”.       

The UN DRIP does not acknowledge “the right of indigenous peoples to the aerial domain and atmospheric space”.

Why Not?

Most of the rights of the Bangsamoro people and the powers of the BJE provided in the MOA-AD are consistent with the UN DRIP. In the opinion of the Court, the Philippine State is not obliged to grant them. Is it because the MOA-AD will make the BJE more autonomous than the ARMM and allow the Bangsamoro people to enjoy more autonomy than they do now

In “1” above, the Court is saying that the BJE cannot have its own police and security force. But the Regional Police or Regional Security Force was provided in the 1996 FPA, Paragraphs 77 to 93 and in R.A. 9054, Article X. The MOA-AD includes “police and security force” – not military force – among the institutions of the BJE (Consensus 8, Governance). Why deny the BJE what has been allowed the ARMM?

The “2” above has no precedence. However, on the very slim chance that the Court would reconsider its Decision, should the negotiation resume on the unsigned MOA-AD, the lack of acknowledgment in the UN DRIP should not be the reason for the Philippine State not to grant it if the MILF can show convincingly its necessity.

Will the Court admit some inconsistencies in its Decision and reconsider?

(To Be Concluded)

(”Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards recently honored Mr. Diaz with a “Lifetime Achievement Award” for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You can reach him at patpdiazgsc@yahoo.com.This e-mail address is being protected from spam bots, you need JavaScript enabled to view it )

Part 3 of a series

GENERAL SANTOS CITY (MindaNews/5 Nov) — The MOA-AD evokes the fate of Julius Caesar, the great Roman conqueror: “… as he was ambitious, I slew him.” This, Brutus said in his oration at Caesar’s funeral. He was Caesar’s best friend but he led the conspirators, including senators, in assassinating Caesar because they had suspected him of planning to crown himself as emperor of Rome, then a republic.

Associative Relation

Because the MOA-AD had envisioned the BJE – the Bangsamoro more autonomous entity – local government officials petitioned the Supreme Court to “slay” it. “Petitioners assert that the powers granted the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM,” the Court wrote in its Decision.

According to the Court, “the international law concept of association” is the “unifying link to the different provisions of the MOA-AD” – quoting from Consensus 4, Governance: “The relationship between the Central Government and the Bangsamoro Juridical Entity shall be associative characterized by shared authority and responsibility …”

The Court granted that this associative relationship would still be precisely defined in the Comprehensive Compact. But it expected a final definition “in an international legal context” to be unacceptable since among the terms of references of the MOA-AD were “international law instruments” wherein the “concept of association is not recognized under the present Constitution”.

The Court observed: “The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws.”

Contrary Opinions

Some legal authorities have contrary opinions.

Dr. Alex B. Brilliantes Jr., dean of the National College of Public Administration and Governance of the University of the Philippines in Diliman, Quezon City, observed that the MOA-AD “is a step farther from federalism and may even lay the groundwork for outright separatism”. He proposes to further examine some of the MOA-AD provisions and place them “within the context of a sovereign Philippines”.

Fr. Ranhilio Callangan Aquino, dean of the Graduate School of Law of San Beda College in Manila, took exception to the Court’s conclusion – based on its inquiry into the associative relation of the United States with the Republic of the Marshall Islands and the Federated States of Micronesia – that: “An associative relation … is one between two states or, in the very least, between a state and a political entity ‘on the way’ to statehood.”

What is the exception? He said: “’Association’ in international law, however, is not a univocal concept [not one meaning only]. The relation between the Cook Islands and New Zealand is ‘associative’ and yet sui generis [a class by itself]. The British Commonwealth of Nations is yet another form of association.”

Zeroing in on the BJE, he continued: “The proposed BJE could have been another variant to the already variegated forms of association: An association between a sovereign State, the Republic of the Philippines, and a political entity analogous to, but not quite (nor necessarily ‘on the road to’) a state.”

How did he explain the Court’s opinion? “Referring to the powers the BJE was proposed to enjoy, the court found them suspiciously bordering on carving out a new independent state. It is a reading, I think, against the background of a history of secessionist sentiments and rhetoric, but it is not necessarily the only way to read the proposed grant of powers” – the problem being “ultimately semantic – an infelicitous choice of legal characterization”.

And he wondered: “Had the GRP Panel refrained from using the disturbing phrase ‘associative relationship’, choosing instead (another term) to spell out the relations between the Republic of the Philippines and the Bangsamoro, would the result have been different?”

Santos disagreed “that ‘the concept [of associative relationship] presupposes that the associated entity is a state and implies that the same is on its way to independence’. There are states … including constituent states in federal republic and associated states. But these are not sovereign independent states.”

Free Association

The Court cited the Federated States of Micronesia and the Republic of Marshall Islands as examples of states with associative relation with the United States. Santos added to these the Commonwealth of the Philippines (1935-46), the Republic of Palau, the Northern Mariana Islands and Puerto Rico.

“Some of these,” he observed, “later emerged as a sovereign independent State (notably the Philippines), others stayed as associated states of the U.S.” Of these others, the Northern Mariana Islands is a commonwealth and Puerto Rico is a commonwealth or an associated free state. Obviously, Santos is pointing out that the Court’s illustrative example is selective.

At this point, two principles of free association are worth noting:

First: The Court cited Keitner and Reisman stating that “[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence.” (Emphasis supplied by the Court}

Second: Citing the UN General Assembly Resolution 1541 (XV) of 1960, Santos pointed out: “Ordinarily, there are three general options for self-determination, or more precisely for a Non-Self Governing Territory to reach a full measure of self-government: (1) Emergence as a sovereign independent State; (2) Free association with an independent State; and, (3) Integration with an independent State.

Note Well: The two principles are essentially identical. The Court and Santos are in full agreement in their citations.

The cases cited as illustrative examples by the Court (including Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada), by Santos and by Aquino fall within the above principles.

                                                                Compact

By the Court’s own account, “the Republic of Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands, are associated states of the U.S. pursuant to a Compact of Free Association”. In essence then, the associative relations between the “associate” and “principal” states are stipulated in the Compact of Free Association.

In the case of RMI and FSM above, “Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership.” However, their currency “is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood”.

The other specific relations of RMI and FSM with the U.S. according to their compacts of free association are almost the same as what the MILF would want the BJE to have with the GRP as proposed in Territory, Resources and Governance of the MOA-AD. Apparently, the RMI and FSM are among the models of the BJE.

Many features of the relations between RMI and FSM with the U.S. are the same as those between Cook Islands and New Zealand. While the former are sovereign states, the latter is not – just self-governing territory in free association with New Zealand. The Republic of Palau is also a sovereign state, like RMI and FSM, with compact of free association with the U.S.

Northern Mariana Islands chose in 1970 commonwealth instead of independence. Its associative status with the U.S. is spelled out in a negotiated “Covenant” approved by the U.S. Congress establishing a political union with the U.S.

The Commonwealth or Associated Free State of Puerto Rico has been associated with the U.S. since the Treaty of Paris when Spain ceded it – together with the Philippines and Cuba – to the U.S. Its associative status is governed by a number of Acts of the U.S. Congress.

To sum up, there are various forms of associative relation between “associate” and “principal” states spelled out in the compact of free association, covenant, other agreements and laws. In fact, the “associate-principal” relation is just one of the associative relations. As Aquino pointed out, the Commonwealth of Nations is another form of association. In the same vein, the Association of East Asian Nations and the European Union are other variations.

The BJE

Because the MOA-AD “contains many provisions which are consistent with international legal concept of association”, it “indicates, among other things, that the Parties aimed to vest the BJE the status of an associated state or, at any rate, a status closely approximating it”, the Court opined.

And it ruled: “The concept of association is not recognized under the present Constitution.” Unmistakably, the Court is saying that the Philippines will not – because it cannot – sign a compact of free association with the Bangsamoro people to establish the BJE.

Aquino contends that the international concept of “association” — being “not univocal” or not just having one meaning — should not mean only as in the cases of the RMI, FSM and others cited by the Court. The associative relation of Cook Islands with New Zealand is a variation of “association”. Had the MOA-AD not been scuttled, he thinks “the proposed BJE could have been another variation.”

Santos, in using Puerto Rico and the Northern Mariana Islands as examples side by side with RMI, FSM and Palau, supports Aquino. He said, “So much depends really on ‘the terms of the free association agreed upon’. This precisely is what the GRP and the MILF are in the process of doing, with such terms to be found in the MOA-AD and, more importantly for finality and detail, the Comprehensive Compact.”

Brilliantes agreed with the Court and the opponents of the MOA-AD that the powers granted the BJE may lead to “outright separatism”. But he only proposed that some of the provisions of the MOA-AD “should be further examined and placed within the context of a sovereign Philippine republic”.

From the contrary opinions of Aquino and Santos — and even Brilliantes – it may be inferred: The Court should not have declared outright the MOA-AD as unconstitutional. Instead, it should have allowed the GRP and MILF panels to spell out in the Comprehensive Compact the BJE-GRP associative relation.

From Brilliantes’ proposal, it could also be inferred that national sovereignty is the ultimate measure of the constitutionality of the GRP-BJE associative relation. By this standard, the Comprehensive Compact must be judged — implying that what does not violate national sovereignty is not unconstitutional; and, the Constitution should be amended to provide for what does not violate sovereignty but is not recognized in the present Constitution.

Could the Court reconsider its thinking and decision? [To Be Continued]

(”Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards recently honored Mr. Diaz with a “Lifetime Achievement Award” for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You can reach him at patpdiazgsc@yahoo.com.This e-mail address is being protected from spam bots, you need JavaScript enabled to view it )

“It has been days already like this, the baby would often stop breathing. But just when we think he is dead, he would come back to life,” says a woman in the adjoining makeshift shelter.

Meriam rouses herself from sleep, surprised to see a group of journalists crowding around their packed quarters inside a market stall here turned evacuation center in poblacion Munai.

Cradling him in her arms, she gently taps the baby’s cheeks several times to wake him up, as if checking whether there remains life within the little bundle. The baby remained motionless.

“The baby is dead,” someone frantically shouted. The crowd fell silent, waiting with bated breath, some with tears in their eyes. 

Baby Hamda is just 28 days old. Ever since the day he was born in early October inside the Munai evacuation camp, “nag-aagaw buhay siya lagi,” caught in a constant struggle between life and death, says the woman in the adjoining makeshift.

But just as all seemed without hope, the baby suddenly stirs back to life, breathing once again.

Everyone heaves a sigh of relief.  Journalists click on their cameras to capture what seemed to be a moment of light prevailing over death’s shadows.

Then, unexpectedly, the baby seems to go lifeless again. 

“We could not just watch and wait for him to die here,” an anxious voice exclaims.

It is the voice of Fr. Eduardo “Ponpon” Vasquez, head of I-watch, the video documentation arm of the Oblate Media and a GMA-7 stringer, who is then taking footage of the ongoing drama. 

Vasquez was with a team of journalists who was going around evacuation centers from North Cotabato to Maguindanao to Lanao del Sur and now, on their fourth day on the road and the last leg, here in Lanao del Norte. The media tour from October 27 to 31 was hosted by the Mindanao Peoples Caucus.

While it was always the stories of dying children that gripped them wherever they go, nothing is as compelling as the stark image of Baby Hamda withering gradually before their eyes. For the team that included veteran photojournalist Rene Lumawag who was the first to chance upon the baby, it is time to lay down their pens and cameras. 

“We’re bringing him to the hospital. Any moment now he will die,” said Vasquez who brought the mother and baby in his pick-up joining a four-vehicle convoy led by MindaNews.

The baby was first brought to a hospital in Kauswagan, Lanao del Norte but had to be transferred to Iligan City for better facilities upon the advice of the attending doctor who suspected the baby to be suffering from severe pneumonia.

Baby Hamda at the Kauswagan District Hospital. MindaNews photo by Rene B. Lumawag

“He only has a 50-50 chance of survival,” said Dr. Arman Colao of the Kauswagan district hospital

Many not as fortunate

While a miracle may have saved Baby Hamda’s life that day, many other infants and children in about 150 evacuation centers scattered all over Central Mindanao were not as fortunate.

As the three-month-old military offensives against three out of 16 base commands of the Moro Islamic Liberation Front (MILF) drag on,  the war is already exacting a heavy toll on civilians particularly children.  

Already, there are 56 internally displaced persons (IDPs) who have died in Maguindanao and Shariff Kabunsuan, 32 of whom due to illness and 18 from actual encounters, according to the Department of Health in the Autonomous Region for Muslim Mindanao (DOH-ARMM) in a November 4 report.

About 21 of the reported deaths caused by illness were ages five years old and below. Diarrhea is the number one leading cause of death among IDPs.

At the Munai evacuation center here alone, 11 evacuees have already died since August 18, seven of them children, mostly due to pneumonia and measles, according to Raissa Ariraya, a midwife at the Munai Municipal Health Center here.

Inside the health center here, among those confined were children evacuees Emran Balabagan, 7, from Sitio Dilabagen West, Barangay Bacolod and Suraini
Banglan, 1, from Barangay Ramayen, who were being treated for nausea, diarrhea and fever.

But seven imams (religious leaders) said that there were already 30 deaths since evacuations started on August 18. They also said that out of 26 barangays in Munai, 21 of them are now “ghost towns” due to military offensives in pursuit of MILF renegade commander Abdurahman Macapaar alias Kumander Bravo.

In Datu Piang and Mamasapano, Maguindanao, Mindanews earlier reported that at least 43 evacuees have already died, 23 of them children, citing records from the town hall and the rural health unit.

While at Datu Piang poblacion during the first leg of the media tour on October 27, Mindanews chanced upon 16-year-old Raiz Adteg who was carrying an umbrella over the body of his baby sister, one-year-old Anariza, who died that morning at the plaza turned evacuation center. 

Raiz was on his way to bury Anariza whose body was wrapped in a “malong” and a mat tied on two bamboo poles carried by his uncle and cousin. He said that they had no money to buy medicine that was why his baby sister died.

At a gazebo inside the Datu Piang town plaza, a father shared his story, on how he lost his only two children, Jamir, 3, and Jamiha, 1. Merin Hardeng from Barangay Irian, Datu Saudi Ampatuan recalled that the kids had been sick and had already been treated. But on the third day, Jamir died. On the following day, they also lost the baby girl, Jamiha, just when the family came home from burying Jamir.

Lawyer Zainudin Malang, director of the MoroLaw Center who joined the journalists in the five-day tour, called on international humanitarian organizations such as the International Committee on the Red Cross to “immediately attend to dying infants and children.”

Malang asserted that there should also be strict observance of the United Nation’s High Commission on Human Rights Guiding Principles on Internal Displacement where IDPs should be provided “safety, nutrition, health and hygiene and that members of the same family should not be separated.”

Worried about the looming humanitarian crisis, Malang bared plans among Moro CSOs to establish a refugee, human rights and media secretariate to monitor the worsening plight of IDPs and rising number of human rights violations.

The Amnesty International (AI) reported that there are already about 610,000 people displaced in the last two months of fighting in Mindanao. The report entitled “Shattered Peace in Mindanao: The Human Cost of Conflict in the Philippines” was released late October.

Mindanao-wide CSOs have also called on the United Nations to intervene and put the peace process between the Philippine government and MILF back on track to stop the war. 

The peace process collapsed when the  Memorandum of Agreement on Ancestral Domain (MOA-AD) was supposed to have been formally signed on August 5 in Putrajaya, Malaysia. by the chairs of the government and the MILF peace panels. A temporary restraining order issued by the Supreme Court on August 4 however stopped the government peace panel chair and the Foreign Affairs secretary from signing. On October 14, the Supreme Court voted 8-7 declaring the MOA-AD unconstitutional.

Dwight Zabala, project consultant of the UNICEF’s Mindanao Desk based in Cotabato City, said that children IDPs should be accorded the rights to adequate food, health, play, leisure and other rights mandated under the UN Convention on the Rights of Children.

“They should also be protected from abuse, neglect and exploitation,” he added.

Zabala said that in response to the humanitarian crisis, they have set up a “child protection network” in Central Mindanao composed of 10 local and international non-government organizations. The network includes Mindanao Tulong Bakwet, Kadtuntaya Foundation Inc., Nonviolent Peaceforce, United Youth for Peace and Development (UNYPAD), United Youth of the Philippines (UNYPHIL)-Women, Oblates of Mary Immaculate-Integrated Rehabilitation Program (OMI-IRP), KAWAGIB Moro Human Rights Organization, Bangsamoro Development Agency (BDA), and Community and Family Services International (CFSI).

The network is engaged in monitoring and documentation of grave child rights violations in situations of armed conflict including the killings of children. The monitoring system is in accordance with the UN Security Council Resolution 1612 passed in 2005.

Among the killings that had been documented were the September 8 bombing in Datu Piang, Maguindanao that killed four children - Bailyn, 9; Zukarudin, 7; Adtayan, 5 and Faidza, 2 – of the Manuggal-Mandi family. A bomb dropped from a military  helicopter exploded near the boat they were riding in Barangay Butalo, Datu Piang, Maguindanao that also killed their father and 18-year-old pregnant sister, Aida.

The child protection network also set in place a system of identification and registration of separate and unaccompanied children caught in the conflict.

As for Baby Hamda, doctors have pronounced him out of danger and he is now back at the Munai evacuation center, a week after journalists intervened and brought him to the hospital on October 30.  

But once back inside evacuation centers, sick IDP children however recover slowly even after receiving treatment due to renewed exposure to health hazards, according to a DOH-ARMM report.     

Until perhaps Baby Hamda finally gets home, the struggle to survive

him and countless more other children evacuees, continues. (Charina Sanz/MindaNews)

2nd of a series

GENERAL SANTOS CITY  (MindaNews / October 31) – The MOA-AD has been declared “contrary to law and the Constitution”. Any hope for it – now dead – to animate the peace process is moot. But what chance could it have had the Court been a little liberal?
The Decision has the answers.

The President’s Powers

As the Court has acknowledged, despite that the “constitutional provisions on autonomy and the statutes enacted pursuant to them have … been partially successful” with the creation of the ARMM, “the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF”. The Court saw the problem the MOA-AD intended to address. What’s surprising, however, was that it skirted its prescribed solution.

The solution lies in the President. “Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved may bring an end to hostilities.”

However, the President needs some concessions: “If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation.”

Its own prescription, notwithstanding, the Court deprived the President of “the leeway”. The MOA-AD was the product of three years and eight months of “exploration”.  Yet, the Court struck it down when local government executives of North Cotabato and the cities of  Zamboanga and Iligan complained of having not been consulted during the negotiation.

The unique power of the President to conduct peace negotiations must include the discretion when not to consult.  In the case of the MOA-AD, she knew – more than the complaining local government executives — the intricacies of the talks which can be messed up by third parties not privy to these intricacies by untimely intrusions.

Evidently, the Court did not consider this.

This does not mean that the right of the local government executives to be consulted has not been violated. But was that enough ground to scuttle the MOA-AD? Could consultations not have been made based on the agreement? It was not fully implementable in its initialed form. As the framework of the negotiation of the Comprehensive Compact, its flaws could have been effectively addressed in the CC – the Final Agreement.

As it appears in the Decision, the petitioners got all concessions and leeway while the President had none despite the Court’s prescription – give the President the necessary leeway to complement her unique power to conduct peace negotiations.

Limitation

By “leeway”, the Court in its Decision was explicitly referring to possible considerations for solutions including those that call for the amendment of the Constitution before they can be implemented. Such is the MOA-AD. And the leeway was expected from the Court, since it had accepted the MOA-AD for judicial review.  It instead blocked the leeway with limitation.

Of this limitation, the Court said: “As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.”
What is the extent of the limitation? “Given the limited nature of the President’s authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite.

The most she could do is (to) submit these proposals as recommendations to Congress or the people, in whom constituent powers are vested.”

In stressing the limitation of the President’s power, the Court was laying down the ground to censure the President by declaring the MOA-AD unconstitutional based on Consensus 7, Governance in which the Court said the President had promised to the MILF to have the Constitution amended and on Consensus 4, Governance which grants “the BJE the status of an ‘associated state’” – a status “not recognized under the present Constitution”.

Paragraph 7

The Court said: “Paragraph (Consensus) 7 on Governance of the MOA-AD states, however,  that all provisions thereof which cannot be reconciled with the present Constitution and laws ’shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework.’ This stipulation … is mandatory for the GRP to effect the changes to the legal framework contemplated in the MOA-AD. …”

Is Consensus 7, Governance a promise?  Is it mandatory? Unless given a leeway, it is more likely than not. What was the intention of the GRP negotiators in agreeing with the MILF? Did they not know the limitation of the President’s power in relation to Article XVII, Sections 1 to 3 of the 1987 Constitution?

The well known constitutionalist, Fr. Joaquin G. Bernas, S.J., in his Inquirer column (October 19) referred to this issue as a case of ambiguity  He said, “… in my contacts with members of the negotiating panel, I never got the impression that they wanted to by-pass Congress and to formulate self-executing provisions” although “… the document they produced lacks clarity.”

He explained: “In their sincere effort to produce language acceptable to people who do not accept our Constitution, their language engineering did not succeed in crafting a document free of ambiguity.” But it succeeded in building confidence. The room for a leeway lies there.

This has a parallel in the 1993-1996 GRP-MNLF peace talks. Chairman Nur Misuari, at the outset, rejected references to the Constitution and the ARMM Organic Act or R.A. 6734. GRP panel chairman Manuel T. Yan and President Fidel V. Ramos did not make an issue out of it. They went on with the negotiation without reference to the two documents. With confidence built, Misuari eventually accepted both the Constitution and R.A. 6734.

The Court never credited the President for the rapport the GRP negotiators had established with their MILF counterparts – calling their confidence-building efforts “whimsical, capricious” among others. Keeping the peace process open could not be achieved by confronting the MILF with the 1987 Constitution. No leeway, just limitations!

Intention

The Solicitor General failed to persuade the Court that the “unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well as constitutional processes” and that it “remains to be a proposal that does not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied with”

Lawyer Michael O. Mastura, senior member of the MILF panel, said that the MOA-AD is a “framework treaty” or agreement. He said its “working draft” would “explain the necessary ‘background’ for the GP-MILF peace process” including “the text, and the object and purpose of the treaty”.  Obviously, the Court did not find it necessary to examine the working draft.

Lawyer Sedfrey Candelaria, chief legal consultant of the GRP panel said – contrary to the Court’s opinion – that Consensus 7, Governance “may also explain the unique and non-self-executing character” of the MOA-AD. (Bold text supplied)

To explain, he quoted the first paragraph of Consensus 7 stating that: (a) the “Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact” and (b) for the Parties “to mutually take such steps to enable it to occur effectively”.

The “(b)” is relevant to the second paragraph of Consensus 7, Governance which is the focus of the Court’s opinion and consistently referred to as “Paragraph 7″ — reflecting mutual confidence prevailing: “When the GRP and MILF Panels came to the negotiating table,” Candelaria said, “they were driven by what is possible and not by what is unthinkable.”

That in the negotiation of the Comprehensive Compact, positions and agreements in the MOA-AD could change, Candelaria quoted a practice of negotiating peace agreements: “By their nature, implementation agreements involve new negotiations … as parties test whether they can claw back concessions made at an early stage.”
Candelaria, it should be noted, distinguishes the MOA-AD from the Comprehensive Compact – the first being the “early stage” or “framework agreement” and the second the “implementing agreement”. During the negotiation of the Comprehensive Compact, the parties “can claw back” or reconsider “concessions made” in the MOA-AD as the tentative character of the principles, concepts and framework may evolve”.

Candelaria said that the intention of Paragraph (Consensus) 7, Governance “was never … to supplant the powers of a co-equal branch of the Government by entering into the MOA-AD”.  The GRP Panel had “the mandate to submit by way of recommendations to the Executive as a result of discussions at the negotiating table.  Thereafter, the Executive may consider these for appropriate coordination within the Legislative Branch which may now undertake the necessary legal processes”.

Lawyer Soliman M. Santos, Jr., a legal scholar deeply involved in the  MILF and MNLF peace negotiations with the Government, said that the Court’s opinion on Paragraph 7 “is highly debatable, to say the least” and that the “respondents were all along following a recommendatory mode vis-à-vis their principal, the GRP,” relative to the President’s powers to negotiate — and their limitation — as expounded by the Court.
“Paragraph 7,” he argued, “should not be seen negatively as ‘making the Constitution conform to the MOA-AD’ but rather as a matter of good faith implementation of peace agreements through constitutional processes that may include any necessary amendments or revisions of the Constitution, as would be the approach too with certain international obligations.”

No Leeway

Consensus 7, Governance “is inconsistent with the limits of the President’s authority to propose constitutional amendments”; it is a “virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the ‘consensus points’ found in the MOA-AD”; so “it must be struck down as unconstitutional”.

This gives no leeway for the President to exercise her “unique” power to negotiate a peace agreement with the MILF. This dooms the peace process.

To recapitulate, the Court correctly diagnosed the Mindanao conflict. The establishment of the ARMM according to the Constitution did not stop the fighting between the Moro rebels and the Government.  Given the leeway to negotiate peace, the President can end the conflict. In her 2008 State of the Nation Address, the President hailed the MOA-AD as the breakthrough.

But in declaring the MOA-AD as unconstitutional, the Court gave leeway to the opponents of the agreement, conceding none to the President. The Court did not explore pleadings, facts and circumstances that could have swayed its opinion into conceding to the President the necessary leeway.

The leeway is this: Allow the President to fully exercise her power by letting Paragraph 7 of Governance take its full course and spell out in the Comprehensive Compact “the mechanisms and modalities for the actual implementation of this MOA-AD”.

The Court admonished the President for promising the MNLF to amend the Constitution and warned her she has no such power.  She can only recommend to Congress agreements that will require constitutional amendments for their implementation.

The admonition and warning are undeserved. The Court said the President cannot delegate powers that she does not have.  In like manner, she cannot promise to do what she has no power to do.   And, she cannot recommend to Congress any agreement that will amend the Constitution until the signing of the Comprehensive

Compact.

That’s water under the bridge but it calls for reflection.  (To Be Continued) (

“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. Mr. Diaz is the recipient of a “Lifetime Achievement Award” from the Titus Brandsma for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You may e-mail your comments to patpdiaz@mindanews.comThis e-mail address is being protected from spam bots, you need JavaScript enabled to view it ).