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)