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 )

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 ).

Part 2 of a series
GENERAL SANTOS CITY (MindaNews/9 Oct) – The last issue ended posing the puzzle: Will the new policy address effectively the Mindanao problem deeply rooted in the Moro demand for their ancestral domain?
The logic behind the puzzle is plain common sense: If the new policy fails to effectively address the root of the Mindanao problem, it will not solve the problem.

Complicated

The peace process will continue. This commitment is a response to an all-out demand – from the Moros and peace groups in Mindanao, from some opponents and critics of the MOA-AD — showing they like peace but not the price — and from concerned members of the international community. How it will continue, though, is unclear.
Will the process still focus on talks with the MILF or refocus to dialogues with communities as President Arroyo stated (INQUIRER.net, August 22)? Evidently, the government is taking time in deciding how to proceed. The haste in formulating and announcing the new policy pacified the critics and opponents of the MOA-AD but has put the Arroyo government in a new dilemma.
After weeks of media silence, Executive Secretary Eduardo Ermita said the possible revival of the peace talks was taken up at the National Security Council-Cabinet meeting last October 7 in response to “the clamor from a few sectors from Mindanao”   (philstar.com, October . He emphasized that “the calls must be studied in the light of the new” policy.
Not only the who-focus but, much more, the what- and the how-focuses will make the peace process complicated. President Arroyo stated: “The focus of our talks shall shift from the armed groups to the communities. From negotiations, our focus shall shift to dialogues with the communities or government conducting authentic conversations or dialogues with the people.” To make peace with the armed groups, talk to the communities?
And, the government will negotiate from strength: “From now on, our engagement with all armed groups shall be about DDR … about the people and government telling armed groups to give up the armed struggle.” Does DDR work as simply as this?
Let us take a close look into the new policy.
Out of Focus
When the camera is out of focus, the picture is blurred. And blurred will be the prospects of an out-of-focus negotiation.
What is the ultimate end of the peace negotiation? To address the complaints, the roots of the Mindanao problem. Common sense dictates that the negotiation should be with the rebels, the complainants – the MILF. And the focus should continue to be on the MOA-AD which, in the 3-year, 8-month GRP-MILF deliberation, crystallized the root problems and the solutions.
Where is the logic of having dialogues with the communities? Which communities – Muslim, Christian, Lumad or all three? They may be conflict-affected; but they are not parties to the conflict – the rebellion. They are not the rebels – not the complainants seeking solutions to the root problems.
These communities have big stake in the peace. Perhaps, together with the peace advocates, they can help the government negotiate with the rebels. They can dialogue with the government but they cannot speak for the rebels – not acting as substitute or alternative to the MILF, the party in conflict with the government. Can they tell the rebels to give up the rebellion?
Diverse Concerns
What will these communities talk about in their dialogues with the government? Diverse matters as diverse as their concerns. These will focus on socio-economic needs, services and various forms of assistance.
But these concerns are not new. These may have already been brought to the attention of the government for the nth time – roads, schools, water system, irrigation, land problems, jobs, illiteracy, health, poverty ad infinitum. Sure to a tee, the dialogues will be dramatized, climaxing in promises to the happiness of everyone.
Some promises will be fulfilled. But even if all will be granted, they will only prune not uproot the problem. That’s how the MILF will see these – counterinsurgency measures. The MILF do not consider the Moro problem as basically poverty and ignorance but as their root. To paraphrase a saying, the need is not fish but the skill to catch fish.
Through dialogues, the Moro communities will only receive trickles from what Manila amasses from Mindanao. With political authority over their ancestral domain, the MILF envision the Moros to be the masters of their own destiny. Back to the paraphrase, they will develop their own fishing grounds and catch their own fish – not beg from Manila for bones and heads.
The diverse concerns of the communities will only blur the real focus – the root concern.
About DDR
As stated by President Arroyo, (1) the focus of our talks will shift from the armed groups to the communities; and, (2) our engagement with all armed groups shall be about DDR. What does the President mean by “engagement”? This is vital to the understanding of the new policy.
The word in context takes the military, not the social, meaning. Disarmament, demobilization, and reintegration happen as either a provision of a political agreement or a term of surrender. This should have been the final provision in the comprehensive
compact. With the MOA-AD disowned and the CC aborted, how will the new policy go about the DDR?
Will it be this way? In the dialogues with the Moro, Christian and Lumad communities, the government discusses the DDR. Convinced that the DDR will bring about peace, these communities will join the government, in the words of President Arroyo in “telling the (MILF) to give up the armed struggle”.
Outside of the political agreement, the DDR will not address the root of the Moro or Mindanao problem. It is the consequence, not the antecedent, of the political settlement. At this time, can it be imposed as a term of surrender? An imposition only deepens the root.
By the new policy, does President Arroyo mean to resume peace negotiation with the MILF or does she really mean to impose the DDR to them? “Engagement” connotes imposition.
Resumption
The October 7 report appears to show that the Arroyo government cannot just ignore the calls for the resumption of the peace talks with the MILF. The calls also indicate that the Mindanao peace groups and Moro communities prefer that the government resume the talks with the MILF to having dialogue with them.
But the conditions for the resumption according to the new policy are not encouraging. They are bound to be rejected by the MILF. First, the MOA-AD will only be one of the references. Second, the surrender of the three commanders as a must-condition for the resumption has already been rejected by the MILF.
How will the MOA-AD fare as a reference? The GRP panel will include representatives from sectors hostile to the MOA-AD. This will ensure the exclusion of the vision of the ancestral domain and the root of the Moro problem from the negotiation. How can the peace talks under these circumstances address the root of the Moro or Mindanao problem?
Will there be a new talking framework centered on DDR? It’s unthinkable that the MILF agree to waste the 11-year negotiation and the incremental agreements leading to the MOA-AD that, together with its mode of implementation, will be embodied in the comprehensive compact. The MILF has served notice that the talks, if resumed, willstart from the MOA-AD and on to the CC.
How can the talks resume under contradictory conditions?
Back to the question: “Will the new policy address effectively the Mindanao problem deeply rooted in the Moro demand for their ancestral domain?” The answer is obvious.
Despite the intimidating odds, the MOA-AD is the only option left. (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.comThis e-mail address is being protected from spam bots, you need JavaScript enabled to view it .)

Part 1

GENERAL SANTOS CITY (MindaNews/07 October) – The Arroyo government abandoned the Memorandum of Agreement on Ancestral Domain, announced it would not sign it in its “present or in any other form”, dissolved its negotiating panel and changed its peace process policy. The popular conclusion was the MOA-AD is dead.

But at the same time, in officially informing the Malaysian government about its decisions, President Arroyo said the peace negotiation would continue with the MOA-AD as among the references. One commentator asked: Is the MOA-AD dead or just comatose?

The Moro Islamic Liberation Front is firm: “The MOA-AD is a done deal.  We will never renegotiate,” said MILF Chairman Al Haj Murad Ebrahim. (MindaNews, September 15, 2008.) The resumption of the peace talks starts from the MOA-AD. To the MILF, the MOA-AD is alive.

Will there be resumption of the peace talks? There is a call for it in Mindanao.  There is a call for it from foreign governments, organizations and agencies involved in the reconstruction of Mindanao. Only the peace talks, not the present war or the new Arroyo peace policy around disarmament, demobilization and reintegration (DDR), can bring lasting, just peace.

Hence, the MOA-AD must live, not just be alive. To be alive is only to have life; to live means much more — making life work and enjoy its blessings. Of what good is the MOA-AD alive if its vision doesn’t flourish?

No Better Proof

What better proof is there for the urgent need for peace than the present war? For three decades until 2003, frequent evacuation, dislocation and destruction had been “normal” in Muslim Mindanao.  With the five-year ceasefire until August 2008, normalcy – peace with relative economic progress – fired up the hope hinged on the peace talks that war would never return.     

But fate is unkind. Since the middle of last August, because of the renewed war, more than 500,000 refugees – mostly from Muslim areas – have left their homes, their farms uncertain when to return.  The last five years of peace and relative progress are now memories they are hoping to return as they yearn for the resumption of the peace talks.  They may not know fully what the MOA-AD is but they are joining the call for its resurrection.

With the new Arroyo peace policy, is there a need to make the MOA-AD live to bring renewed hope to the Bangsamoro refugees for peace and progress to return? What can the MOA-AD do that the new policy cannot?

New Peace Policy

The new policy appears multi-faceted and hastily formulated in response to the opposition from the Senate, the affected local governments in Mindanao, the majority opinions in and by the national media.  The MOA-AD has been severely criticized for evident unconstitutionality and the lack of consultation.  The new policy avoids these faults.

First:  The peace process will continue. In the resumption of the negotiation with the MILF, the MOA-AD will only be one of the references.  More sectors will be consulted and represented in the GRP peace panel.

Second: The core of the new policy is the DDR – that is, the disarmament and demobilization of the MILF Bangsamoro Islamic Armed Forces and their reintegration in mainstream society.

Third: Negotiations will also be conducted with the affected communities.

Fourth: The peace negotiation with the MILF will resume only after the surrender of the three wanted MILF base commanders in three areas: Ameril Ombra Kato (Maguindanao), Abdullah Macapaar alias Bravo (Lanao) and Aleem Sulaiman Pangalian (Sarangani).

Will the new policy address effectively the Mindanao problem so deeply rooted in the Moro demand for their ancestral domain – the core of their political, economic, cultural and social aspirations?

                                                         Big Gap

A big gap lies between the Government’s and the MILF’s views of the Mindanao problem. To the Government, the Mindanao problem is rooted in the poverty of the Moros, their ignorance and their culture. These handicaps cause them to lag behind the Christian Filipino majority in political, social and economic progress. Assistance to pull them abreast is the solution.

To the MILF, poverty and ignorance and all the ills they bring are only contributory causes of the Mindanao problem.  The real root is the divestment of the Moros of their political authority and economic resources – two necessary means to uplift the Moros’ economic, social, cultural and spiritual well-being.  Assistance is only palliative, not the ultimate cure.

There has long been assistance. This, however, has not narrowed the socio-economic gap between the Muslim and the Christian communities – according to surveys and as seen in Mindanao.  While foreign aids are concentrated in Muslim communities, these are inadequate to make miracles. Assistance of the government is limited and restricted – dependent on political influence and bias.

This Government’s view has been deeply ingrained in government policies for decades – a view as traditional as datuism is to the Moros. This view – enhanced in the prejudiced minds of the majority in the country and biased leaders that the Muslims are incapable of good government – precludes the proper understanding of the MILF view.  The gap remains big.

How Realistic?

How realistic is the MILF’s view? 

Correct! Poverty and ignorance have caused the Moros and their communities to lag behind their Christian neighbors and the rest of the country. Why are they poor and ignorant?

The big majority of them have been deprived of lands. Their leaders have lost the authority to manage their ancestral lands and economic resources. The state’s land laws and policies are biased against them while favoring Christian settlers and big investors. These underscore deprivation of the Moros of their ancestral domain as the root of their poverty, ignorance and all the ills that have brought about the Mindanao problem.

The government will be unconvinced.  The Christian majority, especially the opponents and critics of the MOA-AD, will scoff at this view. However, common sense may bear it out: One cannot have what he has no means to have; more so, if the means has been taken away from him.

How could a people without lands, with low literacy – eking out a living as squatters, slum dwellers, low-income laborers or craftsmen, roadside vendors, crude fishers of diminishing freshwater fish, etc. – escape from the vicious poverty-illiteracy cycle? The farther they will lag behind their propertied and educated neighbors – Christians and a few of the ruling and educated class of their tribe.

How could a people, divested of the authority to control their ancestral lands and other natural resources, use these to uplift their socio-economic and cultural life? They have to depend on the Manila government for whatever assistance it will allow to trickle down to them out of the revenue from these ancestral natural resources.

How can a people whose political leaders have been reduced to puppetry hope to get redress for the historic injustices done upon them? Only leaders handpicked by Manila win elections; only those appointed by Manila enjoy high offices.  In return, their leaders use them as pawns to win elections for their Manila masters. They are mere assets in perpetual puppetry.

In 1977, the autonomous government for the Muslims was created to entrust political power in Muslim leaders.  Today this autonomy is what Manila has always wanted it to be – having a   strictly controlled government and use of the region’s natural and other economic resources to confine the Autonomous Region in Muslim Mindanao to a mendicant autonomy.

Deprivation of their ancestral domain has condemned the Moros to dependency. The MILF has visualized in the MOA-AD the way to liberate the Moros from political and economic dependency and through self-government raise their economic, social and cultural life. They were able to make the GRP peace panel see and support the realism of the vision or view.

                                                        The Puzzle

Unfortunately, the GRP panel found itself forsaken – accused of treason, of selling out the country’s sovereignty together with the Arroyo government.  Unable to withstand the heat, President Arroyo disowned the MOA-AD and dissolved the GRP peace panel. 

Did the Arroyo government sincerely forge an agreement over the MILF’s envisioned Ancestral Domain on seeing its realism or did it do just to advance its political interest?

If the Arroyo government had sincerely seen the realism of the envisioned AD, did it renege on its agreement with the MILF just to pacify its opponents and critics and to salvage that political interest it had wanted to advance — whether for national interest or not? Is its new policy designed to satisfy the ends of the AD minus the MOA and at the same time promote its political interest?

This puzzle brings back the question:  Will the new policy address effectively the Mindanao problem deeply rooted in the Moro demand for their ancestral domain?

(“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 ).

GENERAL SANTOS CITY (MindaNews/24 Sep) — Rudy is persona non grata to Iligan City! Why not Gloria?

For what is he unacceptable or unwelcome to Iligan City?

Reports MindaNews: … for his alleged participation in the “conspiracy to fool the people, cut Iligan City into pieces and of the biggest blunder the Philippine government has ever made which is the carving and giving a big chunk of Mindanao to a rebel group, just to attain the simple word ‘peace’”. (September 21, 2008)

Wow! I think, that’s a grand compliment. Persona non grata is a censure – not of notorious persons but persons of dignity, usually diplomats, who have offended a host country. That’s a way of recognizing Prof. Rudy B. Rodil as a very dignified person. Who doubts that he is?

Look here! When a diplomat or a visiting dignitary offends the host country, he is declared “persona non grata” and advised to leave; but this is not done on a “wanted undesirable alien” who is hunted, arrested and deported. See the connotation of persona non grata? The person is unwelcome for breaking some code of conduct but not the law.

In Iligan City, like in other cities, there are many unwanted persons – law and immorality violators, some in the “wanted list” of the police. But the Iligan City Sanggunian or Council has never passed a resolution declaring them persona non grata.

But the Iligan City Council unanimously declared Rudy, “the pride of Iligan and the rest of Mindanao for his expertise on Moro and Lumad histories”, persona non grata – with City Mayor Lawrence Cruz concurring — for not doing his job as vice-chair of the GRP negotiating panel to their political satisfaction. They could not distinguish Rudy’s job from their job.

But on September 28, 1994, the Iligan city government honored Rudy with “Outstanding Citizen” or Ang Buotang Iliganon Award. Now, after exactly fourteen years, dili na buotan si Rudy – no longer a good Iliganon. Rudy has not been asked to return his award; neither has he been ordered to leave Iligan City as personas non grata are asked to leave their host countries.

Does Prof. Rudy B. Rodil deserve the persona non grata “award”?

Said Mayor Cruz, “We could not understand why Rudy, despite being a professor in Iligan, did not consult us on the matter of potentially including 82% of our land area in the BJE.”

Was Rudy an appointed representative of Iligan City in the RP panel? Was consultation an individual or a collective task of the panel? It appeared that secrecy, instead of consultation, was the policy. Could individual panel members do consultations on their own initiative?

But Rudy said that on April 25, 2006, he told the city council of the possibility that the predominantly Moro barangays would be included in the BJE. If the city government was really that concerned, why did it not make a formal communication with the panel?

SP Resolution 08-563 accused Rudy of conspiring to “cut Iligan City into pieces” and to give “a big chunk of Mindanao to a rebel group”. Was the GRP-MILF peace negotiation a “grand conspiracy”? If the quest for Mindanao peace is, it is. Is it?

The Iligan City government has all the right to lead Iliganons in street and other forms of public protests, to storm Malacañang with complaints. But, has the City Council the power to summon to explain a member of the GRP panel created by the President? Rudy is presidential appointee. That was like summoning the President to explain.

In the MindaNews, Rudy asked: “Did I give anything away? Did the national government give away something when a plebiscite is precisely required?”

The questions beg proper understanding of the issue – letting reason prevail over emotion. The proposal to include barangays – supposedly predominantly Moro contiguous with the ARMM — in the Bangsamoro Juridical Entity could happen only with the consent of the residents in a plebiscite. So, if there’s any giving, it’s the residents by voting YES who will.

Resolution 08-563 was emotional in noting that had it not been for the “resourcefulness” of Mayor Lawrence Cruz, “Iligan City could (have awakened) morning of August 6, 2008 that its eight barangays are devoured, by virtue of the MOA”

The resolution, done on September 1, almost a month after the public issuance of MOA-AD, showed that the Iligan City mayor and councilors did not read, failed to understand what they had read or ignored what they had read on framing their persona non grata resolution. It is clear that the MOA-AD would not take effect on the day after its signing.

It is clear, too, that if the eight barangays will vote like what they did in the ARMM plebiscites of 1989 and 2001, they will remain with Iligan City. It is the residents of the eight Iligan City barangays and all the other 735 who will decide to or not to be with the BJE a year after the signing of MOA-AD. Telling the people otherwise is fooling them.

Do they doubt if the MILF will abide by the will of the voters in the 735 barangays – eight in Iligan City? In his latest statement, MILF chairman Hadji Al Murad Ebrahim appeared to have erased any doubt. He said that “the MILF has agreed on a plebiscite” in exchange for the GRP “promise to do all legal means to accommodate the MOA-AD”. (MindaNews, September 17)

Does this not mean that the plebiscite will be manipulated to deliver all the 735 barangays to the MILF? The plebiscite will be conducted according to a law passed by Congress and the President cannot commit Congress to MOA-AD, according to Defense Secretary Gilberto Teodoro. Congress is certain to enact a law according to the Constitution and the MILF knows that, Teodoro told abs-cbnNEWS.com/Newsbreak

In retrospect, did Iligan City also declare Rudy persona non grata in 1996? He was also member of the GRP panel that negotiated with the MNLF. The 1996 Final Peace Agreement gave to the MNLF not only eight barangays but the entire Iligan City and a much larger chunk of Mindanao.

But like in 1989, the Iliganons told the MNLF in the 2001 plebiscite that they were not joining the ARMM. In venting their ire on Rudy, were they no longer sure that the eight barangays that in 2001 voted 98 percent NO would not stick it out with Iligan City in another plebiscite? The 1994 “Outstanding Citizen” award was to honor Rudy as member of the 1993-1996 GRP panel.

The Iligan City mayor and council are unfair to Rudy. The GRP panel, in negotiating the MOA-AD followed the policy and guidelines set by President Arroyo and the security cluster of the Cabinet. When the cluster objected to parts of the text, the panel was asked to have this modified. The MOA-AD was scrutinized by the security cluster and with the imprimatur of President Arroyo.

If anybody has to be declared persona non grata by the Iligan City government, it should be President Arroyo – Gloria, not Rudy. Does Iligan City not pride itself for having Gloria as its adopted daughter and Gloria proudly proclaiming the city as her foster home as she said she had grown up there with her grandmother? Pero dili man nila madaug-daug – hindi nila kaya – si Gloria (They are afraid of Gloria).

And to be more unfair to Rudy, the city government had not given him a copy of the persona non grata Resolution as of last September 21. He said he only heard about it from friends; an NGO worker sent him a scanned copy of a news report published in the September 7 issue of the local weekly, Mindanao Scoop. (MindaNews, September 21)

Was the city government – the mayor and council – serious about Resolution 08-563 censuring Rudy, or was that just a political show?

If it was serious, it should have (1) served Rudy the original copy on September 2; (2) ordered him to leave Iligan City, as alien personas non grata are ordered to do; and, (3) recalled the “Outstanding Citizen Award” given to him 14 years ago.

They did not! That speaks a lot.

(”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 )

4th of a series

GENERAL SANTOS CITY(MindaNews/17 September) — If Muslim Autonomy, whether it is the ARMM or the BJE version, is real autonomy, it must have a strong economic economy. With weak economy like what the present ARMM has, political autonomy is meaningless. From this, the Bangsamoro quest in MOA-AD for their ancestral domain, lands and other resources must be understood.

III. Resources

The 12-consensus-point strand “Resources” is controversial because of the powers granted the BJE in the development of the economic resources of the Moro Homeland. By these powers, the Moro Homeland is free from the control of the Manila government – unlike in the case of the ARMM — with a partnership, not a benefactor-beneficiary or master-subject relationship.

Curiously, it should be asked:

What is wrong in empowering the BJE “with authority and responsibility for the land use, development, conservation and disposition of the natural resources within the homeland”? (Consensus 1) (See also: Consensuses 2 and 3)

What is wrong with the rationale behind the grant of such powers: to “reinforce their economic self-sufficiency”?

Strategic Minerals

Of the four “measures to make progress more rapid” enumerated under Consensus 1, stimulating the local economy to address unemployment and living conditions (b), uprooting the causes of poverty (c), and reviewing “public services, industrial or trade-related and agrarian related issues”(d) should be positively appreciated.

What is being objected to as excessive, as well as unconstitutional, is Consensus 1.a that empowers the BJE: “Entry into joint development, utilization and exploitation of natural resources designed as commons and shared resources, which is tied to the full setting of appropriate institution, particularly affecting strategic minerals.”

This suggests that the BJE can enter into joint ventures with domestic and foreign investors in the exploitation of the natural resources — in particular strategic minerals which under Section 2 of Article XII of the 1987 Constitution “shall be under the full control and supervision of the State”.

The ARMM, under R.A. 6734 and R.A. 9054, is vested with the authority to control and supervise the “exploration, utilization, development and protection of mines and minerals” within the region except “the strategic minerals”. This is also stipulated in the 1996 GRP-MNLF Final Peace Agreement.

“Strategic minerals” are “uranium petroleum and other fossil fuels, mineral oils, all sources of potential energy”. These are speculated to be abundant in the ARMM. Is economic autonomy not essential to Muslim autonomy? Is withholding these strategic minerals not undermining economic autonomy?

The policy is cockeyed. The ARMM can explore, use, develop and protect mineral resources (R.A. 9054, Article XII, Section 5) but not the highly demanded strategic minerals which are reserved for the national government. Yes, the choicest cuts are always for the masters.

Foreign Trade

Consensus 4 has two very controversial stipulations:

First, “The BJE is free to enter into any economic cooperation and trade relations with foreign countries” with the condition “that such relationships and understandings do not include aggression against the Government of the Republic the Philippines”.

Second, by right, the BJE has the “option to establish and open Bangsamoro trade missions in foreign countries with which it has economic cooperation agreements”.

These agreements are condemned for being unconstitutional. But the ARMM can enter into economic agreements: “Subject to the provisions of the Constitution, the Regional Government shall evolve a system of economic agreements and trade compacts to generate block grants for regional investments and improvements of regional economic structures which shall be authorized by law enacted by the Regional Assembly.” (R.A. 9054, Article IX, Section 11)

While not explicitly said, Section 11 implies that the “economic agreements and trade compacts” are between the ARMM and foreign countries. The MOA-AD is explicit: “any economic cooperation and trade relations with foreign countries”. Is the implicit constitutional but the explicit unconstitutional?

If foreign trade relations are constitutional as implied in Section 11, why should trade missions be unconstitutional? They are necessary to promote trade relations.

MNLF Chairman Nur Misuari, as ARMM governor, spent much of his first year in office as a one-man trade mission to foreign capitals inviting investors to invest in the ARMM and other SZOPAD provinces. Did he violate the 1987 Constitution?

Int’l Meetings

Consensus 4 has more controversial stipulations:

Third, “… the Central Government shall take necessary steps to ensure the BJE’s participation in international meetings and events, e.g. ASEAN meetings and other specialized agencies of the United Nations.”

Fourth, this obligation of the Central Government (Third, above) “shall entitle the BJE’s participation in Philippine official missions and delegations that are engaged in the negotiation of border agreements or protocols for (a) environment protection,(and b) equitable sharing of incomes and revenues, in the areas of sea, seabed and inland seas or bodies of water adjacent to or between islands forming part of the ancestral domain, in addition to those of fishing rights”.

Objections to these agreements have no constitutional basis but spring from anti-Muslim bias and prejudices akin to ridicule: The Muslims are demanding too much, not so different from how masters sneer at their subjects who desire to be treated as equals.

However, these are essentially the same as the GRP-MNLF agreement on Muslim right to representation in the national government and organs of the state, Paragraphs 63-67, 1996 FPA. These are embodied in R.A. 9054, Article V, Sections 4-7.

The “system of economic agreement and trade compacts” is for the ARMM to generate funds for the regional economy. Consensus 4 should be viewed similarly instead of viewing it with anti-Muslim bias, prejudice and cynicism.

International meetings and Philippine official missions, including the President’s state visits, offer opportunities to invite investors. Should the BJE be denied such opportunities?

Negotiations of border agreements or environmental protection adjacent to the Moro Homeland involve BJE economic and related interests. Should the BJE be denied the right to cooperate with the national government to protect and promote regional and national interests?

Two More

Also objected to in Consensus 6 is the 75-25 sharing with the national government in favor of the BJE of revenues generated in the region. In R.A. 6734, the sharing is 60-40; in R.A. 9054, 70-30, except in strategic minerals which is 50-50. Will this redound to better fiscal stability?

Consensus 7 provides that:

(1)  “The legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged.”

(2)  “Whenever restoration is no longer possible, the GRP shall take effective measures or adequate reparation collectively beneficial to the Bangsamoro people , in such quality, quantity and status to be determined mutually by both Parties.”

The MNLF did not demand these during the negotiations of the Tripoli Agreement of 1976 or of the Peace Agreement of 1996. The first is exacting acknowledgment of injustice done; the second, reparation for such injustice.

This is a daring but not a novel demand that should be weighed by its merits. There were cases in the United States when the Indians were awarded by the U.S. Supreme Court compensations for illegal dispossession of their lands covered by treaties.

The Rest

The last five consensus points under “Resources” should occasion no controversy. They are regulatory and organizational – unless the authority given the BJE and its relation with the national government is questioned.

Consensuses 8 and 9: The authority granted the BJE has also been given to the ARMM in Article XII, Section 5(d) of R.A. 9054: “Except as provided in this Organic Act, existing leases, permits, licenses, franchises, and concessions shall be respected until their expiration unless legally terminated earlier as provided by law enacted either by Congress or by the Regional Assembly”.

Consensus 10 calls for the establishment of “a five-member BJE economic-expert mission” or “the Mission” the functions of which are detailed in Consensuses 11 and 12. There is no similar concession in either R.A. 6734 or R.A. 9054 for the ARMM.

By its functions and membership, the establishment of the Mission is an innovative strategy for “reconstruction and development”. Examine, first, its functions and, then, its membership:

Consensus 11: “The Mission … shall cooperate fully with all organizations in involved in the implementation of the peace settlement”. And, “It shall launch a plan and joint international appeal for the reparation and development of the conflict affected areas in Mindanao.

Consensus 12: The members will be appointed by (a) the Third Party facilitator – two from international institutions, one of whom will be the chairman; (b) two by the BJE, one of whom will the co-chairman; and, (c) one member by the national government.

If the primary objective of Muslim autonomy is to empower the Bangsamoro people to become genuinely autonomous politically and economically, what is unconstitutional with their quest for resources that they can fully develop by their own efforts with assistance from the national government and the international communities?

(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 )

Source: Mindanews