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 )