Supreme Court Split 8-7 on MOA-AD

Almost all of the participating Justices wrote Separate Opinions on this case. Even ahead of those doubtless erudite disquisitions being available online, the following rather detailed COURT NEWS FLASH has arrived by email from the Public Information Office of the the Supreme Court.

SC Declares MOA-AD Unconstitutional
Posted: October 14, 2008
By Jay B. Rempillo

The Supreme Court, voting 8-7, today declared “contrary to law and the Constitution” the Memorandum of Agreement on the Ancestral Domain Aspect (MOA-AD) of the Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Tripoli Agreement on Peace of 2001.

In a 89-page decision penned by Justice Conchita Carpio Morales, the Court, granting the main and intervening petitions, enjoined the respondents and their agents from signing and executing the MOA-AD or similar agreements. Likewise, they were directed to conduct public consultations in accordance with the right to information, with respect to any further peace negotiations with the MILF.

“In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by EO No. 3, RA 7160, and RA 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined,” the Court said.

Chief Justice Reynato S. Puno, Justice Consuelo Ynares-Santiago, Justice Antonio T. Carpio, Justice Adolfo S. Azcuna, and Justice Ruben T. Reyes, joining the majority vote, all wrote separate opinions. Also joining the majority are Senior Justice Leonardo A. Quisumbing and Justice Ma. Alicia Austria-Martinez.

Those who voted for the dismissal of the petition and wrote dissenting opinions are Justice Dante O. Tinga, Justice Minita V. Chico-Nazario, Justice Presbitero J. Velasco Jr., Justice Antonio Eduardo B. Nachura, Justice Teresita J. Leonardo-de Castro, and Justice Arturo D. Brion. Justice Renato C. Corona joined Justice Tinga’s dissent.

The Court held that respondents’ failure to consult the local government units or communities constitutes a departure by respondents from their mandate under EO No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. EO No. 3 defines the authority of the GRP Negotiating panel.

The contents of the MOA-AD are matters of paramount public concern involving public interest in the highest order, the Court stressed.

The Court stressed that the MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE (Bangsamoro Juridical Entity), are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence, it said.

The Court noted that inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions from the President dated March 1, 2001, addressed to the government peace panel. Moreover, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process

The Court added that while the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, the respondents’ act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective.

The Court denied the respondents’ motion to dismiss the petitions on the ground that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions. It ruled that the present petitions provide an exception to the “moot and academic” principle in view of (1) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar and the public; and (d) the fact that the case is capable of repetition yet evading review.

The Court noted that the MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar of significantly dissimilar provisions compared to the original.

The Court, however, found that the prayers for mandamus have been rendered moot in view of the respondents’ action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.

The Court said that the people’s right to information on matters of public concern under sec. 7, Art. III of the Constitution “is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under sec. 28, Art. II of the Constitution.” The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law.

The Court explained that at least three pertinent laws justify the exercise of the people’s right to be consulted on relevant matters relating to the peace agenda:

One, EO No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building;

Two, RA 7160 (the Local Government Code of 1991) requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment; and

Three, RA 8371 (the Indigenous Peoples Rights Act of 1997) provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples.

The Court also held that invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable.

In his separate opinion, Chief Justice Puno wrote that “the President as Chief Executive can negotiate peace with the MILF but it is peace that will insure that our laws are faithfully executed. The President can seek peace with the MILF but without crossing the parameters of powers marked in the Constitution to separate the other branches of government to preserve our democracy. For even in times of war, our system of checks and balances cannot be infringed. More so in times where the only danger that faces the State is the lesser danger of rebellion…Needless to stress, the power of the President to negotiate with the MILF is not plenary. While a considerable degree of flexibility and breadth is accorded to the peace negotiating panel, the latitude has its limits – the Constitution. The Constitution was ordained by the sovereign people and its postulates may not be employed as bargaining chips without their prior consent.” He observed that “during the whole process, the government peace negotiators conducted themselves free from the strictures of the Constitution.” He added that “respondents’ thesis of violate now, validate later makes a burlesque of the Constitution.”

Justice Santiago said, among others, that the MOA-AD “contains provisions which are repugnant to the Constitution and which will result in the virtual surrender of part of the Philippines’ territorial sovereignty.” She further said that had the MOA-AD been signed by parties, “would have bound the government to the creation of a separate Bangsamoro state having its own territory, government, civil institutions, and armed forces…The sovereignty and territorial integrity of the Philippines would have been compromised.”

Justice Carpio said that “any peace agreement that calls for amendments to the Constitution, – whatever the amendments may be, including the creation of the BJE – must be subject to the constitutional and legal processes of the Philippines. The constitutional power of Congress to propose amendments to the Constitution, and the constitutional power of the people to approve or disapprove such amendments, can never be disregarded. The Executive branch cannot usurp such discretionary sovereign powers of Congress and the people, as the Executive branch did when it committed to amend the Constitution to conform to the MOA-AD.”

Justice Azcuna agreed with the ponencia but held that had the MOA-AD been signed it would have provided a basis for a claim in an international court that the Philippines was bound by its terms at the very least as a unilateral declaration made before representatives of the international community with the vital interests in the region. Citing Martin Dixon and Robert McCorquodale, Justice Azcuna stated that unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking. Such undertaking, if given publicly, and with an intent to be bound is binding upon the parties.
Justice Reyes said that the MOA-AD was unconstitutional stressing that the negotiating panel of the Philippine Government (GRP) “went beyond their marching orders from the President” as the commitment of the GRP to the MILF to change the Constitution in order to conform to the MOA-AD violated the doctrine of separation of powers. Justice Reyes, citing the defects of the MOA-AD, stated that respondents appear to have committed grave abuse of discretion in negotiating and initialing the MOA-AD.
Justice Tinga, who voted to dismiss the petitions on the ground of mootness, said that the fact that the Philippine government has not yet consented to be bound by the MOA-AD, as asserted by the MILF because its draft agreement had been “initialed” by the representatives of the Philippine and Malaysian governments and the MILF, is indubitable, as “the successful outcome of negotiation of international agreements is the adoption and authentication of the agreed text… The initialing of the agreement reflects only the affirmation by the negotiating agents that the text of the prospective agreement is authentic.”
Justice Tinga nonetheless went into a discussion as to the intrinsic validity of the MOA-AD. He opined that the MOA-AD was incongruous to the Philippine Constitution. “Nothing prevents Congress from amending or reenacting an Organic Act providing for an autonomous region for Muslim Mindanao…Nonetheless, the paramount requirement remains that any organic act providing for autonomy in Mindanao must be in alignment with the Constitution.” He cited provisions of the MOA-AD which were extra-constitutional and diminish national sovereignty as they allocate to the Bangsamoro Juridical Entity powers and prerogatives reserved under the Constitution to the State.
Justice Nazario deemed it beyond the power of the Court to stop the Executive Department from entering into agreements similar to the MOA in the future. “Upon the Executive Department falls the indisputably difficult responsibility of diffusing the highly volatile situation in Mindanao resulting from the continued clashes between the Philippine military and Muslim rebel groups. In negotiating for peace, the Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means.”
Justice Velasco said that “favorably accommodating the petitioners under the premises cannot but be viewed as an indirect attempt on the part of the Court to control and dictate on the peace prerogatives of the executive branch, and in the process unduly impairing that branch in the performance of its constitutional duties. It will distort the delicate balance of governance which the separation of powers seeks to safeguard.”

Justice Nachura said that “with an abandoned and unsigned MOA-AD and a dissolved peace Panel, any purported controversy has virtually disappeared. Judicial review cannot be exercised where the incipient actual controversy does not remain extant until the termination of the case; this Court cannot provide reliefs for controversies that are no longer there.” He added that “the Court cannot review an inexistent agreement, an unborn contract that does not purport to create rights or impose duties that are legally demandable. Neither will the remedy of prohibition lie against a GRP Peace Panel that no longer exists. To do so would be to flog a dead horse.”

Justice Leonardo-De Castro opined that the detailed analysis of each the stipulations contained in the MOA-AD was rendered unnecessary due to the Memorandum filed by the Office of the Solicitor General repeatedly and categorically stating that the agreement “will not be signed in its present form or in any form.” Such development has rendered the case moot and academic.
Justice Brion stated that the application of the exceptions to the mootness principle should be subjected to “a strict test because it is a deviation from the general rule.” He stressed that after the respondents declared that the MOA-AD would not be signed there was nothing left to prohibit and no rights on the part of the petitioners continued to be at risk of violation by the agreement. He concluded that the circumstances negated the existence of grave abuse of discretion that justifies the grant of a writ of prohibition, and voted to dismiss the consolidated petitions. (GR Nos. 183591, 183572, 183893, and 183951, The Province of North Cotabato v. Republic, October 14, 2008)

Gloria's Mess and the Role of the United States Institute of Peace

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Stupid Cat, Wily Mouse

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Apartheid Begins With Two Sets of Laws

"In the name of God, the Beneficent, the Merciful..." begins the now famous and highly controverted Memorandum of Agreement on Ancestral Domain between the GRP-MILF -- whose every syllable is now being analyzed and scrutinized since it is at the center of a renewed armed conflict in Mindanao.

In speaking about it on the talk show Korina Sanchez Today, Senator Aquilino "Nene" Pimentel also discussed Senate Resolution No. 10 and the proposal to shift to a "federal republic of the Philippines. For me the most significant thing he said was that ultimately, the only thing that would solve the "Moro Problem" in Mindanao is to allow a prospective Muslim state like the Bangsamoro Juridical Entity to adopt sharia law for cases involving Muslims, but that in cases which involve say Muslims and Christians, federal law would apply.

I think this makes a total mockery of the Bill of Rights on religious, civil, political and economic freedoms, and undermines the very foundation and integrity of our system of laws EQUAL PROTECTION. We are not talking here of the difference between federal and state law such as we find in the United States, because in no case may such laws be applied on the basis of race, religion, creed or sexual preference. Here we have an explicit reliance on the difference in religion that Pimentel is brazenly pushing and which Malacanang is abetting for the even nastier purpose of extending Gloria Macapagal Arroyo's Desperate Death Grip on supreme power.

The Federalism that Nene Pimentel is pushing is really the beginning of apartheid, because it sets up two very different sets of laws for citizens that ought to be indistinguishable in the eyes of the law. Under sharia law for example, adultresses are stoned to death (and may even be raped tortured and ridiculed to save the honor of their brothers and fathers!)

An interesting thing I've noticed has to do with the bangsamoro concept itself. Taking the pejorative term "Moro" and lashing it to "Bangsa" was a brilliant stroke by folks like Nur Misuari and Hashim Salamat who created thereby, a new collective noun with nationalistic symbolic power to refer to the specifically Muslim inhabitants of Mindanao as one nation, one people.

In the MOA-AD the concept of the bangsamoro is extended to include ALL such inhabitants of Mindanao and their descendants, whether Muslim or not, as in the section on Principles & Concepts:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros”. 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 and their descendants whether mixed or of full native blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected.

2. It is essential to lay the foundation of the Bangsamoro homeland in order to address the Bangsamoro people’s humanitarian and economic needs as well as their political aspirations. Such territorial jurisdictions and geographic areas being the natural wealth and patrimony represent the social, cultural and political identity and pride of all the Bangsamoro people. Ownership of the homeland is vested exclusively in them by virtue of their prior rights of occupation that had inhered in them as sizeable bodies of people, delimited by their ancestors since time immemorial, and being the first politically organized dominant occupants.

3. Both Parties acknowledge that ancestral domain does not form part of the public domain but encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well as all natural resources therein that have inured or vested ancestral rights on the basis of native title. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.

4. Both Parties acknowledge that the right to self-governance of the Bangsamoro people is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The Moro sultanates were states or karajaan/kadatuan resembling a body politic endowed with all the elements of nation-state in the modern sense. As a domestic community distinct from the rest of the national communities, they have a definite historic homeland. They are the “First Nation” with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations. The Parties concede that the ultimate objective of entrenching the Bangsamoro homeland as a territorial space is to secure their identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as a distinct dominant people.

There are a number of striking LEGAL and HISTORICAL questions posed by the above MOA provisions. First, is who ARE the "indigenous peoples" referred to? Second and third are what exactly is meant or referred to in the various occurrences of phrases like "at the time of conquest or colonization" and "since time immemorial"?

In effect, Principles No. 1 and 2 of the MOA-AD regards all the indigenous peoples living in Regions IX, X, XI nd XII as being part of the "Bangsamoro" super-nation, (reunited with sentimental fondness for the suzerain authority of a restored Maguindanao Sultanate run by the MILF!). Never mind that it was those very sultanates with their "suzerain authority" who kidnapped, enslaved, haremized, bought and sold, bonded and traded human beings they found all over Luzon, Visayas and Mindanao. Actually, what we know from history is that those sultanates were founded quite recently as far as "time immemorial" goes, and by readily identifiable foreign and non-indigenous conquerors and proselytizers in the form of Islamic "missionaries" as well as the far-wandering seed of the Prophet Mohammed bearing their pieces of carefully preserved paper--the genealogical warrants attesting to their nobility and therefore sacred right to rule over and even own other human beings. The arrival of Sharif Kabungsuan, the legendary founder of the Cotabato sultanates, was definitely an event the 16th century--just yesterday compared to the 30,000 years or so of archaeologically established human habitation of the Philippine Archipelago. The Sultanate of Sulu was established somewhat earlier but there is no reason to believe Islam existed in any significant form in these islands much before the dawn of the 15th century. By contrast, there is ample physical and anthropological evidence that Malays, Australo-Polynesians, Indians and Chinese have inhabited the Philippine Islands 'since time immemorial', or at least the Iron Age of 40,000 years ago.

But just to take the seminal event of Sharif Kabunsuan's establishment of the Cotabato Sultanate as a prime example, what could be more obvious than that Islam is as much a "foreign religion" as Christianity? The founder of those fabled sultanates was himself a refugee-prince from the Sultanate of the Moluccas that was conquered by the Dutch in the latter half of the 15 century. His arrival in the Pulangi River region and establishment of a new noble line based on his direct descent from Prophet Mohammed, cannot possibly be distinguished from the arrivals of Magellan or Legaspi and their establishment a foreign "suzerainty" under Spain.

For the convenience of our readers, the pertinent provisions of the Indigenous People's Rights Act are quoted below:

The Indigenous People's Rights Act of 1997 (R.A. 8371) states:

"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples refer to a group of people or homogeneous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains."

The IPRA Law also enumerates the 110 officially recognized INDIGENOUS PEOPLES (as quoted in Justice Reynato Puno's December 2000 Separate Concurring Opinion):

Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao, Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands. They are composed of 110 tribes and are as follows:

1. In the Cordillera Autonomous Region-- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and Isabela.

2. In Region III-- Aetas.

3. In Region IV-- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental Mindoro; Tadyawan of Occidental Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan.

4. In Region V-- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and Kabihug of Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of Sorsogon; and the Pullon of Masbate and Camarines Sur.

5. In Region VI-- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros Occidental; the Corolano and Sulod.

6. In Region VII-- Magahat of Negros Oriental and Eskaya of Bohol.

7. In Region IX-- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the Kalibugan of Basilan, the Samal, Subanon and Yakat.

8. Region X-- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon, Matigsalog, Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del Sur, Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur, Misamis Oriental and and Misamis Occidental, the Manobo of the Agusan provinces, and the Umayamnon of Agusan and Bukidnon.

9. In Region XI-- There are about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato; the Mangguangon of Davao and South Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South Cotabato; and Bagobo of Davao del sur and South Cotabato.

10. In Region XII-- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and Iranon.

You will notice that the concept of bangsamoro has been vastly expanded to included over half of the indigenous peoples of the Philippines listed above from Regions IX, X, XI and XII.
The way this is going we could have 110 separate little BJE-type homelands instead of ONE COUNTRY.

Debating Ancestral Domain

Whether it is Umbra Kato in North Cotabato, or Commanders Bravo and Pangalian in Lanao del Norte, the Moro Islamic Liberation Front has been suffering from an epidemic of Lost Commands in just the last week --that comfortable old shoe of plausible deniability that has been worn for generations by successions of rebel "leaderships". Now, the carnage of wanton death and destruction being left in the wake of brazen Moro Islamic Liberation Front attacks in Lanao del Norte and Saranggani provinces yesterday is being recorded by a perhaps incredulous media as Armed Forces Chief of Staff Gen. Alexander Yano characterized the MILF offensives and atrocities as a "virtual declaration of war." Everyone gets his meaning, but such a statement only abets the pretensions of the MILF to a status of belligerency, or worse, the recognition as some kind of sovereign power.

This is the inevitable result of a failed policy: agreeing to ceasefires that do not lead to disarmament or peace, but only to more "peace talks" . In Kauswagan and Kolambugan towns in Lanao which reject inclusion in the BJE homeland deal, MILF rebels have been "attacking civilians with machetes, burning down their homes, taking dozens hostage and using them as human shields before killing them like chickens." Spokesman Eid Kabalu denies that the "central command" of the MILF gave orders for the attacks in Lanao, and even the alleged renegade Commander Bravo reportedly called into Newsbreak in order to tersely deny leading the attacks in Lanao yesterday.

Meanwhile, in condemning the fresh MILF atrocities, the President once more vowed to "crush them." -- referring to her erstwhile partners in the peace process. Considering what a debacle this whole MOA on Ancestral Domain is turning out to be, they are altogether to blame: Gloria and her bungling advisers like Jess Dureza and Rodolfo Garcia, Gazali Jafar and Eid Kabalu and the MILF leadership and their bungling advisers. Also with egg on their faces are the Malaysians, who've been acting in Southern Philippines much as Russia has in South Ossetia, (which is to say with mischievous and malevolent intentions.)

The roots of the present morass lead back to the IPRA Law and the clash of Opinions that accompanied a challenged to its Constitutionality. On December 6, 2000 (on the eve of Joseph Estrada's historic Senate impeachment trial), the Supreme Court promulgated a most indecisive 7-7 Decision [GRP 135385 Dec. 6 2000] Republic Act No. 8371--THE INDIGENOUS PEOPLE's RIGHTS ACT OF 1997. According to the Separate Concurring Opinion of Justice Reynato Puno in the above case,

"When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts into the Philippine legal system which appear to collide with settled constitutional and jural precepts on state ownership of land and other natural resources. The sense and subtleties of this law cannot be appreciated without considering its distinct sociology and the labyrinths of its history. This Opinion attempts to interpret IPRA by discovering its soul shrouded by the mist of our history. After all, the IPRA was enacted by Congress not only to fulfill the constitutional mandate of protecting the indigenous cultural communities' right to their ancestral land but more importantly, to correct a grave historical injustice to our indigenous people."

Technically speaking, Justice Puno is talking about 110 separate historical injustices, but let that pass for now. I think IPRA's concepts are so radical and collide so mightily with those constitutional and jural precepts that Justice Puno refers to, that he ought to have struck IPRA down as unconstitutional, with all its "sense and subtleties" all at once. Indeed, despite the nobility of its goal, the IPRA Law only barely escaped being annulled by the Supreme Court in a 7-7 Decision [GRP 135385 Dec. 6 2000] Speaking for the seven Justices who who decided that IPRA is unconstitutional, then Justice Artemio V. Panganiban noted the gross and explicit violations of the Constitution inherent in IPRA, particularly on the matter of natural resources utilization:

Already, as of June 1998, over 2.5 million hectares have been claimed by various ICCs/IPs as ancestral domains; and over 10 thousand hectares, as ancestral lands.[34] Based on ethnographic surveys, the solicitor general estimates that ancestral domains cover 80 percent of our mineral resources and between 8 and 10 million of the 30 million hectares of land in the country.[35] This means that four fifths of its natural resources and one third of the country's land will be concentrated among 12 million Filipinos constituting 110 ICCs,[36] while over 60 million other Filipinos constituting the overwhelming majority will have to share the remaining. These figures indicate a violation of the constitutional principle of a "more equitable distribution of opportunities, income, and wealth" among Filipinos.

But wait. WHO are the indigenous peoples of the Philippines and how did they come to be "indigenous"? Justice Reynato Puno wrote in December, 2000 for the seven prevailing Justices:

"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples-- refer to a group of people or homogeneous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains."

I shall let Justice Artemio V. Panganiban reply:

Indigenous peoples may have long been marginalized in Philippine politics and society. This does not, however, give Congress any license to accord them rights that the Constitution withholds from the rest of the Filipino people. I would concede giving them priority in the use, the enjoyment and the preservation of their ancestral lands and domains.[41] But to grant perpetual ownership and control of the nation's substantial wealth to them, to the exclusion of other Filipino citizens who have chosen to live and abide by our previous and present Constitutions, would be not only unjust but also subversive of the rule of law.

In giving ICCs/IPs rights in derogation of our fundamental law, Congress is effectively mandating “reverse discrimination.” In seeking to improve their lot, it would be doing so at the expense of the majority of the Filipino people. Such short-sighted and misplaced generosity will spread the roots of discontent and, in the long term, fan the fires of turmoil to a conflagration of national proportions.

Peace cannot be attained by brazenly and permanently depriving the many in order to coddle the few, however disadvantaged they may have been. Neither can a just society be approximated by maiming the healthy to place them at par with the injured. Nor can the nation survive by enclaving its wealth for the exclusive benefit of favored minorities.

Rather, the law must help the powerless by enabling them to take advantage of opportunities and privileges that are open to all and by preventing the powerful from exploiting and oppressing them. This is the essence of social justice – empowering and enabling the poor to be able to compete with the rich and, thus, equally enjoy the blessings of prosperity, freedom and dignity.

Watch the Explainer Episode Tonight: "The Perils of Partition"

I'll be the guest on Manuel L.Quezon III's The Explainer talk show on ABSCBN's ANC channel this evening at 6pm, with replays throughout the week in case you can't catch it live. We'll be discussing the Memorandum of Agreement on Ancestral Domain between the GRP and MILF, which I think will implement a form of ethno-religious apartheid--a veritable dismemberment not just of Philippine territory but of the Filipino people themselves. Topics sure to come up are the Indigenous Peoples Rights Act of 1997; the history of armed struggle in Mindanao and the prospects for peace; President Arroyo's desperate attempts to amend the Constitution, as well as the roles of Malaysia and the United States.

The Other Shoe Comes Off

Well, well, well the other shoe now comes off as President Gloria Macapagal Arroyo calls for chacha on federalism. Everything is coming clear on why the palace was willing to sign off on anything with the MILF in that silly MOA-AD

For me, the real tip-off was the oh-so-coy remarks of MILF spokesman Eid Kabbalu saying they knew nothing of these chacha moves. The way I listen to him is usually to assume that he is lying and means exactly the opposite of what comes out of his mealy mouth and waiting to see if events prove the assumption right. (Works 99% of the time!)

So the truth that comes out in the wash is that the MILF saw this chacha gambit of the Palace and they played hardball with that soft-skull Dureza and the clueless Esperon to get everything they ever wanted and more as the deadline towards the SoNA approached.

The President's desperation to extend her term is now showing like a whore's stained slip as the Supreme Court received a major challenge to look at the MOA's Constitutionality from motions to intervene from former Senate President Frank Drilon and Opposition Senator Mar Roxas.

Even the role of US Ambassador Kristie Kenney and apparent US acquiescence to some kind of deal with the MILF can now be understood in this light. My theory is that the Palace was able to convince the naive Ms. Kenney (though not necessarily the State Dept. or the White House, which aren't exactly paying any attention to the Philippines right now because of other more pressing events) that President Arroyo will be able to get the chacha choochoo going. The constant repetition by Jess Dureza of the argument that any MOA has to pass Constitutional muster and popular plebiscites anyway, suggests to me that this was also the argument they presented to Ambassador Kenney. She may have been swayed by such an argument, given her time here is limited anyway by the US President election, but Condi Rice and the Americans may have bad hair day when they have a better look at the MOA-AD, whose final form and substance were only finalized in the run-up to the SONA. By then, not even the fantabulist ideas of Pastor Boy Saycon, Butch Valdez and Billy Esposo about a "Muslim client state in exchange for a US base in Bangsamorostan in preparation for a final showdown war with China" -- will seem very funny. Considering how the relative calm in Mindanao has been shattered by the unravelling of the GRP-MILF peace talks and all-out war looming with an emboldened MILF raising the flag of independence in its base camps (according to Cotabato Vice-Gov. Manny Pinol), the US will surely be reviewing its understanding of things.

With PCGG Chairman and Arroyo water-carrier Camilo Sabio's role in trying to influence his brother Jose on the GSIS-Meralco case coming to light, the Supreme Court's independence, not just the CA's, is really on the dock now.

Jess Dureza Claims TRO on MoA-AD is "Moot and Academic"

Press Secretary Jess Dureza, (formerly Presidential Adviser on the Peace Process) has just told ABSCBN News that the issues raised by North Cotabato Vice-Gov. Manny Pinol and other local government officials over the GRP-MILF Memorandum of Agreement on Ancestral Domain (MOA-AD) have been rendered MOOT AND ACADEMIC after the Palace gave them copies following the Supreme Court's Temporary Restraining Order last week. Unfortunately for him and Malacanang former Senate President Frank Drilon and Opposition Senator Mar Roxas have filed petitions to intervene in the case over the central Constitutional issues involved. I recorded their "debate" on the early evening news today:

Manuel L. Quezon III has a huge roundup on this issue today on The Perils of Partition.

Meanwhile, Korina Sanchez also had a hilarious interview with Pastor Boy Saycon and Butch Valdez of the Philippine Larouche Society, with which i think the "chair-wrecker" Billy Esposo is also affiliated. Wikipedia's entry on the Larouche Movement offers an interesting insight:

The Washington Monthly writes that the LaRouche movement has been referred to as Marxist, fascist, a political cult, a personality cult, a criminal enterprise, and "one of the strangest political groups in American history."^[2] The magazine argues it would be more accurate to call the movement a "vast and bizarre vanity press."^[2] The movement promotes a number of beliefs which are called conspiracy theories by critics. Some of these beliefs have been accused of being anti-Semitic.^[3]

The crackpot trio's basic thesis is that the United States is supporting the MILF-GRP MOA-AD because it wants to turn Bangsamoro Juridical Entity into its protectorate for the purpose of setting up a military base in Mindanao in preparation for an impending war with China. They interpret even the war in Iraq and threats on Iran as a way of crimping China's ability to get oil, and claim the US is trying to corner "the remaining mineral and other natural resources of the world" such as those in the Philippines.

SourceWatch of the Center for Media and Democracy considers the Larouche Movement to be a cult of conspiracy theorists...

(I'm still trying to stop LOL...)

John Marzan (Politics '04) wonders if it would make me happy to see a US Military Base on Mindanao from which to fight the War on Terror in this region. MY answer is: NO! (probably the same as the US itself). It is more important that Filipinos help in the effort by getting rid of Gloria Macapagal Arroyo by 2010, if not sooner. She's been the greatest source of trouble for that effort because certain American officials, like US Ambassador Kristie Kenney seems to be totally fooled by her, and ought to be recalled by abetting the debacle unfolding before our eyes around this silly MOA-AD with that visit to the MILF last February. I hope the State Dept. recalls her soon.

America's Moros

If anyone doubts that the MOA-AD represents ethnoreligious apartheid check out this graphic currently displayed on the MORO ISLAMIC LIBERATION FRONT WEBSITE:

Former Senate Pres. Franklin Drilon is quite right that the signing would be a culpable violation of the Constitution. Take a look at the very first line of the MOA-AD, which to me espresses the real essence of its motivation as the establishment of religious apartheid:

IN THE NAME OF GOD, THE BENEFICENT, THE MERCIFUL

These are the very words that MILF/ASG ambushmen were screaming as they sawed off the heads of ten marines last year, and which every suicide bomber utters as they press the trigger that takes them up to a paradise of sexual debauchery.

The fact that the MOA AD does not even mention the Philippine Constitution in its Terms of Reference, as Dean Pangalangan and even Joaquin Bernas noted today, drives home the point that it is a treacherous and unacceptable document that no one ought to seriously believe is about peace.

Much as I join in the desire for peace to be achieved in Mindanao, we cannot do it by giving up our most unalterable convictions about the need for secular society in which the State does not do things in the name of Relgion, any religion.

It is a misdirection play to bring about chacha.

Whichever one is referred to here, (though one would be utterly disingenuous to deny that it is Malayasia’s preferred deity), it is simply NOT in the name of God that we ought to be pursuing peace–for that would surely lead to war.

---

Below continues my recorded readings from Thomas McKenna's book, Muslim Rulers and Rebels (Chapter 5: America's Moros, Anvil Publishing House, 1998). It will be fascinating for readers to discover that the very concept of Philippine Morohood is basically a conscious American creation during the colonial period in preparation for the eventual independence of the Philippines.

The two previous chapter readings are also here:

Islamic Rule in Cotabato (read by Dean Jorge Bocobo)

European Impositions and the Myth of Morohood (read by Dean Jorge Bocobo)
My reading of The Great River (Chapter 12, History of Jesuits in the Philippines, by Horacio de la Costa, S.J.) follows. It provides a window in centuries of Moro sultanic slaveraiding in the Visayas and Luzon and puts to flight any notions of their peaceble nature--nd reveals why most the Filipinos became Christians.

So, What's Wrong With Apartheid?

"APARTHEID" is pronounced "APART-HATE" and means pretty much the same thing! Anglicized, the word might be rendered as "APART-HOOD" -- a state of physical, social and political separation of the people in one country based on racial, ethnic, cultural and other differences. Since the bitter experience of South Africa, it is a hateful and hated concept that attempted to segregate people into "separate homelands" while hypocritically pretending they were "separate but equal."

Now, we must face the question: how different, really, is APARTHEID from the legal concepts and practical effects being promoted under the Indigenous Peoples Rights Act of 1997 and sought to be implemented in the recent Memorandum of Agreement on Ancestral Domain between the Moro Islamic Liberation Front and the Government of the Republic of the Philippines?

Manuel L. Quezon III takes note of the Wall Street Journal's August 7, 2008 editorial page article by Brett M. Decker, Gloria’s Terror Gambit, which addresses the ill-fated MOA-AD which distills a number of points Philippine American Commentary has been making in a large series of posts since this all started last year when Gloria Macapagal Arroyo first broached the idea of Bangsamorostan:

First, by carving up provinces into separate Muslim and Christian enclaves, the deal would surrender any hope that Filipinos can find a way to live together and instead falls back on the myth that countrymen can live healthy “separate but equal” lives in an apartheid-like arrangement. This would undo the decade of progress toward greater political integration since former House Speaker Jose de Venecia started welcoming Muslim representatives into his ruling congressional coalition.

Second, it would increase rather than decrease the likelihood of territorial disputes because the agreement concedes to claims that the region constitutes a traditional Islamic homeland. This would likely inflame Christians, who would be kicked off of land where they have lived for decades when Muslims make claim to their legally mandated “ancestral domain.”

Third, further removing Muslims from the rest of Philippine society and enabling them to shape an entirely separate culture would encourage the separatist mentality that dreams of carving out a pan-Islamic state from other existing countries in the region, such as Malaysia, Indonesia and Singapore. This has been a MILF goal since its founders broke off from the Moro National Liberation Front in the 1980s after that group made peace with Manila.

Lastly, and perhaps most importantly for the outside world, greater Islamic independence and less Philippine control over the Islamic regions would invite even more terrorist activity in an area that already has strong ties to al Qaeda. With the deployment of U.S. Special Forces to the southern Philippines now in its seventh year, joint U.S.-Philippine operations have pacified the most lawless Muslim areas. Expanding the Islamist sphere of influence now threatens to undo this success.

In my opinion, "ANCESTRAL DOMAIN" -- is a twisted gnome of an idea in altruistic clothing with guilt-trippy psychedelic colors that emerged as the incestuous progeny of the 1997 Indigenous People's Rights Act and a December 2000 Supreme Court decision (Isagani Cruz vs. NCIP). The latter's main discursive ponencia is really a dark and scary fairy tale version of Philippine history. It begins in an idyllic, Eden-like setting where the ancient Filipinos, despite being divided into 160 recognizable tribes, lived in harmony and prosperity with nature and each other in a benign tropical paradise, until the Pacific winds and waves blew in with the Serpent of colonialism, who devilishly turns 50 of those tribes into Christianized traitors who may no longer be called indigenous peoples of the Philippines. Meanwhile, a list of 110 of them purportedly ran away into the forests and mountains where they valiantly resisted the new God of the White Men, kept up the old archipelagic ways and traditions, and are today deemed to be the genuine indigenous peoples of the Philippines who by the way own about one-third of the present territory as their private property:

"Ancestral domains and ancestral lands are the private property of indigenous peoples and do not constitute part of the land of the public domain."

Some previous posts that may be useful to those studying this matter in depth are the following:

Ancestral Domain Regime of Bangsamorostan (August 14, 2007) which quotes the following alarming statement by President Arroyo to some business leaders but which most people ignored:

"If it would not adversely affect the Philippine negotiating position and provoke alarm among Christians, a pilot implementation of the envisioned Muslim ancestral domain regime shall be undertaken, to demonstrate our sincerity to achieve peace,” Ms Arroyo said.

She said the government had declared many ancestral domains among indigenous peoples.

“I really don’t see why anybody should be scared if there is an ancestral domain declared for the Muslim people,” she added.

The issue of ancestral domain or territory is about the areas to be recognized as part of a Muslim homeland and which will be placed under a so-called Bangsamoro Juridical Entity (BJE), the probable name of the governing body of the new Moro homeland.

It is not clear how much autonomy the BJE will have. But the proposal is for the MILF to have full fiscal, political and religious authority in the BJE.

Several analyses of the IPRA Law and the Supreme Court Decision are to be found in this series of posts:

Are Ilocanos, Pampangos, Tagalogs, Batanguenos, Naguenos, Cebuanos "Indigenous Peoples of the Philippines?"

Laughable Textbook Errors in Crucial Supreme Court Decisions

Do You Think This Version of Ancient Philippine History Is Correct?

Chief Justice Puno on Terrorism--Sophomoric, Uninspiring, Self-Loathing"

Creation Myth of the Indigenous Peoples of the Philippines

Click on the tag labels below to get a full listing of related posts.

MILF Attacks and Occupies 5 Towns, 9 Municipalities in Cotabato

This summary is not available. Please click here to view the post.

No More Deals Without Disarmament

I think that most Filipinos are sick and tired of watching the Moro Islamic Liberation Front (MILF) brandishing heavily armed fighters parading around and shouting insurgent slogans before news cameras and reporters while their spokesmen talk hypocritically of peace negotiations and memoranda of agreement as "done deals."

It is even more disgusting when government officials like Hermogenes Esperon (Adviser on the Peace Process) speak darkly of "consequences" that might result from not giving the MILF what it is demanding at gunpoint, and even tells local officials that the government might not defend them against retaliatory attacks by the MILF for that Supreme Court TRO stopping the Bangsamorostan deal. It's no wonder that a pinhead like Esperon would dare to say such things when "legal advisers" like Atty. Bong Montesa illogically claim that the Supreme Court could "kill" the peace process with the MILF when it is the latter that has been lobbing mortar shells at our armed forces, harrassing civilians and raring for a fight.

I don't think that any self-respecting nation ought to give in to armed thugs demanding that it carve out a homeland for their wanna-be sultans and rajahs. When folks like Ghazali Jafar, Eid Kabalu and their "partners in the peace process" like Jess Dureza and Rodolfo Garcia talk about "confidence building measures" Filipinos ought to shout back one word: DISARMAMENT.

I don't see why we should entertain any further negotiations without demanding that such negotiations only be done without the threat of the MILF fomenting violence and war. Whenever a group of people take up arms against a government, it is a sign that they really want out of the political and constitutional arrangement that gives that government any and all rights to exist in the first place.

So I think the MILF must choose: either it gives up separatism and their dream of a theocratic sultanate, or face up to the fact that the Filipino people will not, and cannot agree to anything that is forced upon them by an armed insurgency.

For their part, the Philippine government has to develop a spine with a brain attached to it. DISARMAMENT should be a precondition for any deal that requires changes to the Philippine Constitution.

That seems to me to be a fair and equitable give and take, otherwise no progress can actually be achieved. It is patently absurd for this nation to agree to anything at all under an armed threat. And it is simply treasonous (as well as Macchiavellian) for Gloria Macapagal Arroyo to promise heaven and earth to these insurgent thugs with such a threat hanging over the Republic.

No more deals without disarmament!

MILF Claims Bangsamorostan is a "Done Deal"

The MORO ISLAMIC LIBERATION FRONT (MILF) claims that the initialing of a Memorandum of Agreement by Hermogenes Esperon and Rodolfo Garcia means that the deal between it and the Arroyo administration to establish a Bangsamoro Juridical Entity is now a "done deal", even if the Supreme Court has issued an indefinite-time temporary restraining order against it. Here is the full statement of the MILF Central Committee:

“We have initialed the text of the Memorandum of Agreement on Ancestral domain last July 27, 2008. The pact is a done deal. It is binding on the contracting parties who are obliged to refrain from acts that would defeat the object and purpose of their agreement.”


This was the initial statement coming from the Moro Islamic Liberation Front (MILF), after the Philippine Supreme Court issued a Temporary Restraining Order (TRO) to stop the government from signing the MOA-AD with the MILF.

The formal signing ceremony was due to take place, Tuesday, August 5, at Marriott Hotel, Putrajaya, Selangor, Malaysia. A public ceremony only gives importance politically to that “done deal” as a means to establish their consent to be bound to the initialed text of the MOA-AD.

Speaking through Mohagher Iqbal, MILF chairperson of the committee on information, described the TRO as an internal process of the government, which has no binding effects on the MILF.

“The act of initialing the MOA-AD agreed text between the parties,” Iqbal said, “constitutes a signature of the Philippine government and MILF.” Initialing was in fact “done with a credible third party witness, the Malaysian government as facilitator of the talks since 2001,” he went to say. Adhering to diplomatic practice, the MILF peace panel and the GRP peace panel exchange the agreed on text to establish their consent.

Secretary Rodolfo Garcia, GRP chief peace negotiator, and Secretary Hermogenes Esperon of the Office of the Presidential Assistant on the Peace Process (OPAPP) likewise initialed the document for the government, while Mohagher Iqbal for the MILF, and Datuk Othman bin Abdulrazak, the chief peace facilitator, for the Malaysian government.

Iqbal said the signing ceremony is a matter of formality, but even without this ceremony, the document is already legally binding on the parties.

Asked what would be the impact of the aborted signing to the MILF, he said: “Nothing! This is not even a setback to the MILF. We are on the upper hand especially in the battle for moral ascendancy.”

He added: “It is the Arroyo administration which is shamed in the eyes of the international community. There are so many ambassadors already in the Malaysian capital to attend the signing ceremony, only to be told that it is cancelled at the last minute.”

Among those foreign dignitaries already in Kuala Lumpur are US ambassador to the Philippines Kristie Kenney and Ambassador Sayed ElMasry, adviser to Organization of Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines.

Sayed ElMasry agreed to officially endorse the GRP-MILF MOA-AD; in fact, his name is appearing in the initialed document as one of the signatories.

The MOA-AD is the textual version of the consensus points arrived upon by the government peace panel and the MILF peace panel for about four years of peace negotiations which commenced way back in December 2004.

By the way, I think that Ding Gagelonia at Filipino Voices was maybe seeing too much in a simple typographical error on the Luwaran website, interpreting it as meaning that the MILF had announced a postponement of the signing ceremony that would have been held today, August 5. Here is the August 4, 2008 post on Luwaran:

In what is considered as the most significant and historic event that ever happened in the annals of the 11-year old GRP-MILF Peace Talks, the MILF has sent some 50 persons including its peace panel, secretariat, technical committee, and representatives of its nominated non-government organizations (NGOs) to the formal signing ceremony of the memorandum of agreement on ancestral domain (MOA-AD) in Putrajaya, Selangor, Malaysia August 25.

If the report is true, US Ambassador Kristie Kenney is a bigger fool than I thought. Esperon, Garcia and Dureza really are the Three Stooges of this whole sorry mess.