GRP Wages War As SC Ponders On BJE MoA

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Expected SC Decision: Bangsamoro Deal A Political Question

The Supreme Court sits as a full bench today and at bar is the controversy that has caused much consternation, and bloodshed, these past three weeks: the constitutionality of that plan to set up a separate sovereign entity within the Philippines:the MILF-Bangsamoro Juridical Entity.

Four days ago in the Philippine Daily Inquirer, Fathe Joquin Bernas of the Society of Jesus and one of the framers of the 1986 Constitution wrote what you midfielder believes is the most accurate analysis of how that Supreme Court will rule today, if it does decide to: the high tribunal will rule that the issue at bar is a political question that is beyond its authority to act on.

This non-lawyer agrees. Father Bernas also reiterates what has already been widely reported and analyzed: since the MoA-AD was simply been initialed and not signed it is not in force and there is no action yet by the executive that can be declared unconstitutional:

Here is Father Bernas’s view in full, with due and full credit to the PDI:

http://opinion.inquirer.net/inquireropinion/columns/view/20080818-155263/That-piece-of-paper-or-Relax-lang

“Sounding Board : That ‘piece of paper’ or Relax ‘lang’!

By Fr. Joaquin G. Bernas, S.J.
Columnist
Philippine Daily Inquirer

Posted date: August 18, 2008

MANILA, Philippines - Preliminarily, let me say a word about the full-page ad for the MOA which appeared at least twice in the Bulletin and the Star. I am embarrassed that some think it was mine. But the only thing that was mine in that ad was the quotation of what I had said to an Inquirer reporter. However, I am not complaining because, as Cito Beltran remarked about the naughty trick, even the devil can quote Scripture!

Now, about that “piece of paper.”

Some proposals in it are being attacked by many as unconstitutional. But what I know about Constitutional Law is that the issue of unconstitutionality can come up only after something has been done which can result or has resulted in deprivation of a constitutional right. Has this happened? Or, as lawyers would put it, is there an “actual case”?

The MOA is not a done deal. Whether the framers knew it or not, the MOA was nothing more than an elaborate collection of the “wish-list” of those who want to revise the Organic Act of Muslim Mindanao and even the Constitution. In other words, it is an ambitious list of proposals for the amendment of the Organic Act and even of the Constitution.

But amendment proposals cannot be illegal and much less unconstitutional. If that were so, no law or constitutional provision could be amended. We might as well delete Article XVII of the Constitution on Amendments and Revision! Article XVII is there because the Constitution is not written in stone.

What I have learned from jurisprudence is that the only amendment that is not allowed is one which violates the principle of jus cogens. Jus cogens, or peremptory norm of international law, means “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.”

Any proposal which is not contrary to jus cogens, no matter how stupid or even potentially harmful, cannot be dismissed by the Court—because the Court does not have the power to do so. The matter is what is called a “political question”; that is, a question which, under the Constitution, can be resolved only by Congress or the Executive or the sovereign people.

What then can the Supreme Court do about the petition to prohibit the government from signing the MOA? We are back to separation of powers. I can only repeat what the Supreme Court said earlier about a similar problem:

“The doctrine of separation of powers calls for the departments being left alone to discharge their duties and as they see fit. The judiciary as Justice Laurel emphatically asserted ‘will neither direct nor restrain executive [or legislative] action . . .’ The legislative and executive branches are not bound to seek its advice as to what to do or not to do. Judicial inquiry has to be postponed in the meanwhile. It is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture. At such a time, it may pass on the validity of what was done but only ‘when . . . properly challenged in an appropriate legal proceeding.’”

What the Court said about the 1972 Constitutional Convention can be applied mutatis mutandis to the sponsors of the MOA. “More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight.”

But if the MOA is signed, should the Court declare as unconstitutional proposals in it which are incompatible with the present Constitution? To answer that question we must ask what commitment the administration would make if the MOA is signed. It would commit nothing more than that the Arroyo administration will exercise “best efforts” to achieve the changes. It may be a foolish commitment, but folly and unconstitutionality are not the same.

The President has not disowned the MOA. Can the President, under her oath to “preserve and defend” the Constitution, sponsor proposals that will result in amending the Constitution? The duty of the President under her oath is a total package which includes not just to “preserve and defend its Constitution” but also to “execute its laws, do justice to every man, and consecrate [herself] to the service of the nation.” Better execution of the laws, doing justice to every man without exception and consecrating herself to the service of the nation may require sponsoring a needed amendment of the Constitution. To paraphrase the words of a man we all know, the Constitution is made for man and not man for the Constitution.

Whether or not the ARMM Organic Act should be amended to accommodate more territory than presently included in it and whether or not the ARMM or a Bangsamoro Juridical Entity (BJE) should be given powers that presently are not allowed by the Constitution are not for the Court to decide. These are “political questions” which should be addressed by a constituent assembly, whether Congress or a Constitutional Convention, and ultimately by the people in their sovereign capacity.

The MOA is being linked by critics to the extension of term limits for the President. Although extension of term limits is not on the face of the MOA, it is not impossible that the desire to extend the term of the President may have lurked in the secret minds of the framers of the MOA. But again even that will have to come out of the secret mind and go through a constituent assembly and a plebiscite.”E

Remembering Ninoy

Pausing For Peace, Chasing Out Rogues

The guns have fallen silent during the past 48 hours in Lanao.

Everyone down south and here in Manila are taking stock and pausing for peace as political and civil society leaders across the board denounced the murderous rampage of Moro rebels at the start of the week.

After putting the military on war footing for any further trouble, President Arroyo is pursuing wider consultations on the embattled peace process with a meeting tomorrow of the broad-based Legislative-Executive Development Advisory Council.

This is finally a step in the right, and wise, direction for Mrs. Arroyo, with even members of the political opposition being invited to attend the meeting which will coincide with the second, and possibly decisive, full bench session of the Supreme Court on the constitutionality of the MoA-AD.

That widely disputed agreement, which the MILF insists is already “binding” although it has only been initialed, has come under intense question because it proposes to carve a sovereign Bangsamoro State within an expanded Autonomous Region in Muslim Mindanao with treaty-making powers, separate armed forces, electoral, and other prerogatives of a separate nation.

For the first time since the eruption of public uproar and the violence, Malacanang yesterday struck what sounded a contrite tone, and restated its commitment to peace:

Press Secretary Jesus Dureza: “We’re very sorry and we’re very saddened by this. I compare this (the talks) to a shattered glass. It would be very difficult to put the pieces together. But we have not changed our policy. In Mindanao, there is no alternative but peace.”

The other voices:

Kolambugan Lanao mayor Beltran Lumaque:”They killed innocent, defenseless civilians. People are traumatised. We need food, medicines. We want the soldiers here.”

Local Government Secretary Ronaldo Puno said the objective is to push these MILF groups out of the areas where they can wreak havoc. He estimated their forces to number about a hundred and are not supported by MILF leaders who still believe in the peace process.

Lanao del Norte Rep. Abdullah Dimaporo said the attacks on civilians had changed the way people looked at the MILF.

“Muslims and Christians alike condemn the terrorist acts of the MILF,” Dimaporo said.

“I’m sure that their inhuman acts in Lanao del Norte have eroded the respect for the cause of the MILF even from those who help the MILF.”

ARMM Gov. Zaldy Uy Ampatuan said dialogue between the Moro people, including the MILF, and Christian leaders was needed at this time.

Beverly Selim-Musni, InPeace Mindanao convenor:“We are asking the government and the MILF to give primacy to the peace process in order to resolve issues.”

The chair of the Oro chamber of commerce and industry Rodolfo Menes called on officials not to issue statements that could inflame the situation.

“Let us be circumspect on this thing and not exacerbate the situation by saying irresponsible side comments. There must be a steadfast solution to this situation,” Menes said.

The chair of the Philippine Islamic Council and Center for Moderate Muslims, Professor Taha Basman: “(We) condemn the raging war in Mindanao, the burning of churches and the mounting destruction of heavy collateral damage inflicted on innocent civilian sectors (of society)—Muslims and Christians alike,” he said.

Northern Mindanao Ulama’s League officer Sultan Nas Natangcop: “I believe this (the violence) is just a temporary situation. I liken this to being stricken with the colds, which can be immediately cured. In fact, [life in] Iligan and Marawi are already beginning to normalize.”

Maguindanao Rep. Didagen Dilangalen: “Civilians were the ones killed. It’s really atrocious,”

“The life of a Muslim is no more than the life of a Christian.”

Anak Mindanao party-list Rep. Mujiv Hataman: The killings in Kauswagan and Kolambugan in Lanao del Norte are against the rules of war in Islam.

“Do not kill an old man, a woman or a child. Do not injure date palms and do not cut down fruit trees. Do not slaughter any sheep or cows or camels except for food.”

“Do not burn houses and places of worship such as churches, temples and monasteries. Leave priests and monks alone and do not molest them. These are the rules of war in Islam.”

US Ambassador Kristie Kenney said the United States and the Philippines were “friends for life” when asked if Washington would freeze assistance in the wake of the attacks.

“We’re not going to walk away just because there have been a few bad days,” Kenney said, adding she was hopeful the two sides could return to the negotiating table.

President Arroyo ordered massive relief operations for thousands of people displaced by the violence.. Social Welfare Secretary Esperanza Cabral and Health Secretary Francisco Duque will personally oversee “intervention measures” and Defense Secretary Gilbert Teodoro, chairman of the National Disaster Coordinating Council, will “trigger the release of funds for relief and rehabilitation of affected families and other victims.”

The Toll: 38 dead, including three soldiers, while dozens of others were injured and nearly 10,000 displaced.

This is where things stand at the moment and At Midfield humbly joins in the call for peace.

Will GMA Declare A State of Emergency?

There is much trepidation as I write this post, asking if President Arroyo will declare a state of emergency in the wake of the spate of attacks in at least four towns in Lanao that are all being blamed on the Moro Islamic Liberation Front or supposed ‘lost commands’.

The death count has reached at least 28 dead with a lieutenant colonel among the military’s casualties and fleeing civilians reportedly being hacked to death with machetes and left dead on the roads for hours. Even drug stores were targeted in the burning of businesses and homes during the Moro attacks.

The Red Cross is still counting just how many thousands have fled their homes in the 4 Lanao towns even as the attackers reportedly withdrew overnight to their camps in Lanao Sur as the military, put on war footing by the president yesterday, said it was conducting pursuit operations.

The picture that clearly emerges is one of a grave emergency, so will this be the basis for such a move by Malacanang?

Will the President’s allies in Congress call for her to exercise emergency powers after having already called out our troops “to defend every inch” of Philippine territory?

During her national broadcast yesterday ahead of chairing an emergency session of the National Security Council, Mrs. Arroyo carefully prefaced her directive to the military with the phrase “as your Commander in Chief” while AFP Chief of Staff Alexander Yano was in battle fatigues as he himself announced that start of offensives against the Moro rebels.

Sadly even as the situation may indeed call for such moves, today or in the days to come, an emergency declaration will be fraught with danger for civil rights and all those in between.

We watch and wait.

The 3 Possible SC Decisions on the BJE

The Supreme Court still has another hearing date (August 22) set on the petitions questioning the legality of the Memorandum of Agreement on Ancestral Domain between the Arroyo administration and the Moro Islamic Liberation Front.

While other issues may still surface that could change the direction of the likely SC decision, a close review of the remarks made by the justices at last Friday’s 5-hour-long point to one of three possible decisions that the high tribunal will hand down:

First: The High Court will lift the TRO and toss out the petitions as premature given that the agreement has not been signed and that no actually illegal act has been committed, thus allowing the signing of the MoA-AD to proceed but with a caveat that it be immediately renegotiated;

Second: The Supreme Court will replace the TRO with a preliminary injunction stopping the MoA-AD altogether;

Third: The Court will toss the issue back to the Executive Department effectively removing the TRO on the ground that it is a political question, allowing the MoA to be signed after renegotiations.

Consider the following observations made by at least 11 of the Justices in the course of the 5-hour-long oral arguments:

Justice Antonio Carpio:

1) Several provisions of the MoD-AD clash with the Philippine Constitution and that implementing them would require amendments to the Charter;

2) The Bangsamoro Juridical Entity (BJE) to be formed would in effect govern all of Mindanao and Palawan, as well as the “lumad” [indigenous peoples] in Mindanao and their ancestral lands;

3) “There are obviously several provisions of the MOA that contradict the Constitution.BJE is not the state; ”

4) With the MOA-AD defining the “Bangsamoro people” as all indigenous people of Mindanao, without reference to religion, it would encompass even the Christians and the lumad. If the MOA pushes through, the ancestral domain of all lumad in Mindanao are now part of the BJE. If they want to leave, they can but they have to leave behind their ancestral domain;”

5) The MOA-AD refered to land and natural resources possessed by the Bangsamoro people from time immemorial to the present. If the lumad were included, then “you’re talking of the entire Mindanao, Sulu and Palawan. In short, ancestral domain will now be the entire Mindanao, Sulu and Palawan;”

6) could the lumad be included in the Bangsamoro people without consultation.

Justice Adolf Azcuna:

1) The MOA-AD “on its face is patently illegal under our present laws;”

2) Can the negotiating parties agree to change existing laws?;

3) Even a simple change, such as adding a crescent moon on the Philippine flag, can only be could done if there is an enabling law;

4) “Fr. Joaquin Bernas may be right. The MOA is just a scrap of paper.”

Justice Renato Corona:

1) The parties questioning the agreement appeared to be afraid of nothing because without the signatures, the document did not legally exist;

2) Many concerns are being raised even if the document itself has yet to be signed. “You’re giving me the impression this is mere fear of the unknown. How can you fear something that does not exist.”

Associate Justices Conchita Carpio-Morales and Arturo Brion:

1) The government and the MILF should go back to the negotiating table;

2) Granting a “state within a state” in the Memorandum of Agreement on Ancestral Domain (MOA-AD) may not be possible under the Constitution.

Associate Justice Conchita Carpio-Morales:

1) The Arroyo government may have to go back to the negotiating table to ensure that the provisions in the MOA-AD are consistent with the supreme law of the land;

2) If the MILF refuses to renegotiate, that is when the MOA-AD can be considered void.

Associate Justices Renato Corona and Ruben Reyes:

1) It is premature to judicially review the MOA-AD since it hasn’t even been signed in the first place;

2) Corona: The petitioners have a “fear of the unknown;”

3) Reyes: The power to approve constitutional amendments belongs to Congress, not the executive branch.

Justice Consuelo Ynares Santiago:

1)The petitions may be premature, considering that the MOA-AD has yet to be signed.

Justice Teresita Leonardo de Castro:

1)The MOA-AD is different from federalism because the BJE is allowed to enter into agreements with foreign nations.

Chief Justice Reynato Puno:

1) The Constitution only allows autonomy, not secession;

2) The Constitution also gives the president the power to review the MOA-A;

3) On the signature page of the MOA-AD, Foreign Secretary Alberto Romulo was designated as a witness and not as an endorser;

4) The MOA-AD is “not a done agreement” yet; 5) Nothing in the document says it is final.

Note:

Just hours ahead of the issuance on the SC TRO last August 4, the MILF through it web site, luwaran.com said the MoA-AD would be signed on August 25. Let’s see whether that ‘deadline’ will be met.

Federal Republic of the Philippines: Pimentel’s Blueprint

We are marking a long weekend so this is opportune to take a closer look into Senate Resolution # 10, Senator Aquilino Pimentel’s Blueprint for the Federal Republic of the Philippines (FRP).

Resisting any premature comment, here first are the main points:

* The FRP will have a 425-Member unicameral Federal Congress with the legislature headquartered in Bohol
* The declared National Territory encompasses the areas to which the Philippine has pending and unresolved historical claims, meaning the Spratlys and Sabah.
* GMA is mandated to step down in 2010 and is prohibited from seeking election in the new government.

Read on:

* The 63-page annex of SR 10 contains 154 proposed revisions of the Constitution.
* Only two articles, the Bill of Rights and Citizenship, are untouched.
* Federal House of Representatives will have 75 senators and not more than 350 congressmen, or a total of 425 members.
* Rationale:

1. “Whereas, the highly centralized system of government has brought about a spotty development of the nation where preferential treatment has been given to localities whose officials are friendly with or have easy access to an incumbent administration;

2. Whereas, this lopsided arrangement has spawned a host of problems including massive nationwide poverty to runaway insurgencies and rebellions that feed on the societal inequalities in the nation;

3. Whereas, creating eleven States out of the Republic would establish 11 centers of finance and development in the archipelago as follows:

* The 11 Federal States:

1. The State of Northern Luzon;

2. The State of Central Luzon;

3. The State of Southern Tagalog;

4. The State of Bicol;

5. The State of Minparom;

6. The State of Eastern Visayas;

7. The State of Central Visayas;

8. The State of Western Visayas;

9. The State of Northern Mindanao;

10. The State of Southern Mindanao; and

11. The State of BangsaMoro”

* GMA’s Term Limit:

“Unless the incumbent President is removed from office, dies, or resigns, the Incumbent shall serve until 2010, the year her constitutional term of office ends. She is, however, not qualified to run again for office under the Constitution.”

SR10 does not have any proposal to switch from the presidential to the parliamentary form of government.

* Longer term limits:

SR10 extends the term limits for members of the House of Representatives, by setting four years, instead of the present three years, as the length of one term, and allowing a maximum of three consecutive terms.

Under SR10, provincial, city, and municipal officials, and also the governor and vice governor of the proposed new states, would all get up to three terms of four years each, longer than at present. Senators would stay within their present limit of two terms of six years each.

* The State of Bangsamoro:

SR10’s proposed State of Bangsamoro only includes the provinces of Lanao del Sur, Maguindanao, Shariff Kabunsuan, Basilan, Sulu and Tawi-Tawi, with capital at Marawi City. The areas that the Moro Islamic Liberation Front is bargaining for overlap with portions of SR10’s proposed States of Northern Mindanao and Southern Mindanao.

* SR10’s proposed State of Northern Mindanao (capital at Cagayan de Oro City):

Covers the provinces of Zamboanga del Norte, Misamis Occidental, Camiguin, Misamis Oriental, Bukidnon, Agusan del Norte, Dinagat Island, Surigao del Norte, Lanao del Norte, Zamboanga del Sur, Zamboangay Sibugay, and all cities, municipalities and villages therein.

* SR10’s proposed State of Southern Mindanao (capital at Davao City) :

Covers the provinces of Agusan del Sur, Surigao del Sur, Compostela Valley, Davao, Davao Oriental, Davao del Sur, South Cotabato, Sarangani, Cotabato, Sultan Kudarat, and all local entities therein.

SR10 seeks to transfer major portions of national government operations to the Visayas and Mindanao. It would keep Manila as the seat of the Executive Branch, but proposes to transfer the Legislative Branch to Tagbilaran City. It would require the Supreme Court to transfer to Cagayan de Oro City within 10 years.

* The Seat of the unicameral Federal Congress:

The Federal Congress shall hold office and its sessions in the City of Tagbilaran in the State of Central Visayas. Congress may authorize its committees to hold public hearings in aid of legislation or conduct investigations in furtherance of its oversight functions in any part of the Republic.

How the Constituent Assembly will vote:

“NOW, THEREFORE, Be it resolved as it is hereby resolved by the Senate with the House of Representatives concurring, upon a vote of three-fourths of all the Members of both Houses voting separately, to convene Congress into a constituent assembly pursuant to Section 1, paragraph 1 of Article XVll of the Constitution, and revise the Constitution for the purpose of adopting a federal system of government that will create 11 States, constitute Metro-Manila as the Federal Administrative Region, and convert the nation into the Federal Republic of the Philippines.”

Key Revisions Proposed in SR 10:

Revision No. 1.

Section 1. Article 1. National Territory.

The scope of the national territory is hereby revised by adding a new paragraph as follows: The national territory shall likewise include all islands occupied or claimed by the Republic out of historic title, by discovery or other means recognized under international law and its exclusive economic zone as defined by the United Nations Convention on the Law of the Sea.

Revenues and Taxes

(2) All revenues and taxes collected by the local government units or by national government agencies in accordance with the Local Government Code of 1991, Republic Act No. 7160, shall be divided in the following manner: twenty percent (20%) shall accrue to the Federal Government and eighty percent

(80%) to the States. (3) Of the share accruing to the States, thirty percent (30%) shall pertain to the

State concerned and seventy percent (70%) shall be apportioned among the provinces, cities, municipalities and barangay according to the formula stated in the Local Government Code of 1991.

Revision No. 2.

New Section. Article XIV. Utilization of Local Resources.

States may pursue local development in the utilization of mineral, marine and aquatic, forest and other natural resources. They may engage in local and international trade and commerce to attain self sufficiency and progress within their respective territories subject to the limitations imposed by the Constitution.

Revision No. 3.

New Section. Article XIV. Small-Scale Utilization and Development of Natural Resources.

The right of citizens to engage in the small-scale utilization and development of natural resources, as well as cooperative fish farming, with priority to the right of the subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons as provided in the Local Government Code of 1991 shall not be abridged.

(Note: Senators Rodolfo Biazon and Panfilo Lacson have withdrawn their signatures from the resolution.)

Triggering A Crisis: The BJE Land Grab

President Gloria Macapagal Arroyo is back from the Games and so it is most likely that as she scans the ’sunrise news and opinion summary’ prepared by the Office of the Press Secretary the chief executive will confirm what she already has a sinking feeling of: a maelstrom has erupted over the piecemeal revelations about the details of the Bangsamoro Juridical Entity Deal.
Of course chief palace spokesma, Secretary Jesus Dureza, erstwhile pointman for the Mindanao peace negotiations has facetisoudly dismissed the criticisms about the MoA-AD as “noise..”
“The President has approved the way forward and there’s no question about it. If she has the political will to do it she has to muster political will in spite of all these noises.”
It may be that indeed there is political will, but is there a mandate from the Filipino people to proceed with what highly respected news analyst Amando Doronila calls a “begotiated land grab:
“If the MOA had not been revealed in time, no one would have had the slightest idea that the area awarded by the memorandum to the expanded homeland represented the biggest negotiated land grab of national territory to a separatist group in the country’s history.”
Doronila further says:
“The unrest unleashed by the MOA over the territorial grab, the grant of sweeping powers that have the main elements of a sovereign state outside the compass of the Philippine Constitution has undermined the capacity of the Arroyo administration to deliver a peace pact.”
Former constitutional commissioner, Father Joaquin Bernas, for his part, has finally weighed in with a deeper insight beyond the earlier report remark of his that the MoA-AD was “just a piece of paper.”
Now Bernas properly chastises the government of the day from failing to directly mention the fundamental law, the Constitution, in the MoA-AD:
Toward the end of the document I find this passage: “Any provisions of the MOA on Ancestral Domain requiring amendments to the existing legal framework shall come into force upon the signing of a comprehensive compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe contained in the comprehensive compact.”
The paragraph is highly loaded and will need a lot of exegesis. I take it that the “legal framework” referred to are the existing Organic Act and the 1987 Constitution, but for some reason the document is reluctant to even mention the Constitution. Which is being given greater weight, the “legal framework” or the “comprehensive compact” or the “prior agreements”?
Add to what Malacanang calls “noises” , two senators, the Liberal Party’s presdent and presumptive standard bearer in the 2010 elections, Senator Mar Roxas and former senate president Franklin Drilon are both asking that they be allowed to participate in Friday’s oral arguments at the Supreme Court’s en banc session.
The two gentlemen are denouncing the MoA-AD as a “dangerous precedent” (Drilon) and “traitorous product of coercion and deceit” (Roxas).
In the meantime, yesterday the MILF attacked and briefly took over Tipo-tipo Basilan before being forces to withdraw.
But this was clearly an ominous sign of the rebels’ readiness to open up another front line in the worsening situation, with the flashpoint in Midsayap, North Cotabato still smouldering.
There is now undeniably a refugee crisis that is developing with the civilian evacuees rising to some 130,000.
Now tell us, is this simply “noise”?

Trigerring A Cris

The Bangsamoro Juridical Entity MoA: High Crime?

With the fighting having erupted over the weekend in North Cotabato, the need for a resolution of the constitutionality of the disputed, and TRO’d, Memorandum of Agreement on Ancestral Domain between the Arroyo Regime and the Moro Islamic Liberation Front has taken on a truly urgent nature.

Four days from now the Supreme Court will convene in full to hear the oral arguments of the petitioners against the MoA-AD led by local officials of North Cotabato and Zamboanga City (possibly joined by Senator Roxas who is filing a motion to intervene today) and the reply from government as represented by Solicitor General Agnes Devanadera, armed presumably with the inputs from the negotiating panel of Malacanang, Justice Secretary Raul Gonzales, and presidential legal adviser Sergio Apostol.

Last week legal eagles like retired Justice Isagani Cruz and Dean Raul Pangalangan also detailed their reservations against the MoA-AD.

I do not know if the two gentlemen will be asked by the Supreme Court to submit briefs and appear as amicus curiae on the 15th of August but we do pray their views will also get factored into the raging national debate.

This writer is not a lawyer. But I am a Filipino and a taxpayer so I hope I am equally entitled to say how I feel.

I think Mrs. Gloria Macapagal Arroyo is about to commit or may have already committed treason against the Republic.

May I also now share here the points related to me by former U.P. College of Law dean and former undersecretary of foreign affairs Merlin Magallona yesterday. His points:

“1. The MoA-AD, as drafted and initialed by the members of the Philippine side and concurred to by their MILF counterparts and a Malaysian government representative standing as ‘mediator’ is in complete derogation of constitutionalism;

2. The Executive, acting through the Peace Panel, is way in gross trespass of the separation of powers;

3. Acts executed against the provisions of mandatory and prohibitory laws are void except when the law itself authorizes their validity;

4. Power and authority in the MoA-AD are way out of constitutional limitations with the Executive having exercised authority not defined by the fundamental law;

5. The MoA-AD was initiated by foreign interests;

6.The Bangsamoro Juridical Entity is not a person in law and has no juridical capacity to act;

7. The MoA-AD involves the abdication of sovereign powers;

8. The sovereignty question is not a matter for a plebiscite as it in itself is a question of constitutionality;

9. The plan is premised on the Bangsamoro’s ‘reversion’ to a supposed sovereign state antedating the Republic;

10. Charter change being mentioned as necessary for the MoA to be implemented seeks, in reality, to remove the nationality requirement in the exploitation of natural resources.

The ten points laid down, its was also noted in this writer’s extended interview that it may be that the quid pro qu in the proposed peace pact with the MILF is not simply the issue of ancestral domain, but actually control of the reputed huge reservoir of natural gas deep in the Cotabato Liguasan marsh plus the territorial waters within the expanse of the expanded ARMM that will constitute the Bangsamoro Juridical Entity.

THE REPUBLIC IS, INDEED, IN GRAVE PERIL.

The ‘GRP’-MILF Draft MoA: Designed To Fail?

The Supreme Court, as the headlines this morning announce, issued a temporary restraining order on that Bangsamoro ancestral domain agreement between the Arroyo government and the Moro Islamic Liberation Front.

But as this writer reported at FilipinoVoices.com and in my main blog at midfield.wordpress.com, the MILF ’scooped’ the Supreme Court TRO hours before it came out by announcing a later date, August 25, for the signing of the agreement.

A close reading of the subsequent details in the converging stories wil show that the Supreme Court set the oral arguments for the case filed by the local officials of North Cotabato and Zamboanga City for the 15th of the months, a full ten days before the MILF’s adjusted date.

This ‘coincidence’ clearly allocates a full ten days more before the de facto deadline of August 25, breathing space enough for both the Supreme Court to either junk or allow the agreement (an extreme likelihood) and for the government of the day to ‘calm the fears of and win over’ the MoA’s oppositors.

A ‘cooling down period’, in a manner of speaking, right?

But as Makati congressman and lawyer-journalist Teodoro Locsin clearly puts it: “It is the formal and voluntary dismemberment of the Republic,”

Mon Casiple, Executive Director of the Institute for Political and Electoral Reform (IPER) elaborates:“Based on the few precious details available, the scope of authority of the BJE seems to approximate–if not the same as–the authority of a local state in a federal state system. If so, what is going to be signed on August 5 will be beyond the autonomy mandated by the 1987 constitution.

The constitution speaks of a national state territory including all those mentioned in the agreement. It also speaks of a unified armed forces and police force. Further, it specifically defines autonomy as the only possible framework for Muslim Mindanao and prohibits any delegation of state authority outside of the constitution.

Article XII, Section 2 also stipulates that, “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State.”

The political question that arises on August 5 is: Where did the President and her negotiators got their authority to promise what they cannot give?’

“If what they are thinking of doing is to change the 1987 constitution in order to shift the Philippine state from its current unitary system (albeit recognizing local autonomy) to a federal state system with local states, then they are putting the cart before the horse. They should do this before negotiating on a federal framework for the peace process.

Otherwise, they open themselves to the charge of treason based on the dismemberment of the Philippine State and to accusation of acceding to an agreement in bad faith–when they do not have the constitutional mandate for their negotiating position and their signature on the eventual agreement.”

Finally, the Philippine Daily Inquirer’s John Nery gives us a very clear reading:

‘”… my impression after two readings of the Philippine Daily Inquirer’s copy of the draft MOA is that the basic framework is actually not the government’s, but the MILF’s.”

And behind all these, could there be method in the mafness now unfolding, could it be that the agreement was designed to be un-implementable?

Is it doomed to fail, as least within the remaining lifespan of the current administration?

This, in my view, can be gleaned from the indicative time line for the establishment of the so-called Bsangsamoro Juridical Entity which Manolo Quezon (MLQ3) posted in his Daily Dose last night, with the graphics from Mon Casiple as reportedly prepared by a member of the GRP team.

The ‘Bangsamoro Juridical Entity’: Road To A Republic’s Dismemberment

With 20 months left in her ‘disputed’ presidency and eager to eave a ‘historical legacy’ Filipinos will remember and supposedlt derive lasting benefits from Mrs. Gloria Macapagal Arroyob is embarking on a bold but totally dangerous path that could prove fatal to the Republic: the establishment, the carving out of what is being called a ‘Bangsamoro Juridical Entity.

The Philippine Daily Inquirer in a bylined report written by Fe Zamora reports:

“Bangsomoro to get own state

Gov’t, MILF to sign ancestral domain pact Tuesday

By Fe Zamora
Philippine Daily Inquirer

Posted date: August 02, 2008


PRACTICALLY A NEW STATE WITH “A DEFINED TERRITORY” and “a system of governance suitable and acceptable to [the Bangsamoro] as a distinct dominant people” will be established in Mindanao under the proposed Memorandum of Agreement (MOA) on Ancestral Domain between the Philippine government and the separatist Moro Islamic Liberation Front.

Under the proposed agreement, which is scheduled to be signed on Tuesday, the planned Bangsamoro homeland will have its own “basic law,” its own police and internal security force, and its own system of banking and finance, civil service, education and legislative and electoral institutions, as well as full authority to develop and dispose of minerals and other natural resources within its territory.

Copies of the draft MOA were distributed to retired generals during a forum on July 24 in Camp Aguinaldo, where Hermogenes Esperon, President Macapagal-Arroyo’s adviser on the peace process, was the guest of honor. The Inquirer obtained a copy.

But Inquirer sources privy to the peace process said the proposed agreement with the MILF would require amending the Constitution.

They said its provisions on territory and governance would require amendments to the “existing legal framework” and a plebiscite in areas to be included as part of the Bangsamoro homeland.

The proposed homeland will be governed by the Bangsamoro Juridical Entity (BJE), which will have authority to send trade missions to and enter into economic cooperation agreements with other countries provided it does not include aggression against the Philippine government, and send representatives to the Association of Southeast Nations as well as agencies of the United Nations.

Described as a “landmark deal,” the proposed MOA will pave the way for the crafting of a “comprehensive compact” seen to finally end the 40-year, on-and-off Moro armed struggle in Mindanao.

The conflict has left 120,000 dead despite the signing of a peace agreement between the government and another separatist group, the Moro National Liberation Front, in 1996.

Ultimate objective

According to the proposed MOA, the “ultimate objective of entrenching the Bangsamoro homeland as a territorial space” is to “secure [the Bangsamoro’s] identity and posterity, protect their property rights and resources, as well as establish a system of governance suitable and acceptable to them as a distinct dominant people.”

The proposed homeland will include the Autonomous Region in Muslim Mindanao (Sulu, Maguindanao, Lanao del Sur, Tawi-Tawi, Basilan and Marawi City); the municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in Lanao del Norte; and hundreds of barangays in the provinces of Sultan Kudarat, Lanao del Norte and North Cotabato, which voted to become part of the ARMM in 2001.

The proposed MOA also provides for the inclusion of the Bangsamoro’s “ancestral domain” in Mindanao, Palawan and Sulu.

Definitions

“Ancestral domain” and “ancestral land” are defined in the proposed agreement as land “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 a government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions.”

“The ‘Bangsamoro homeland’ and ‘historic territory’ refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan region,” according to the proposed agreement.

It also states: “It is the birthright of all Moros and all indigenous peoples of Mindanao to identify themselves and be accepted as ’Bangsamoro.’ 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 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.”

Shared authority

Per the proposed agreement, the government — referred to in the document as the “Central Government” — and the BJE are to exercise “shared authority and responsibility” over the Bangsamoro homeland.

The details of the structure of shared governance will be defined in the “comprehensive compact.”

A multinational third party will be jointly invited by the government and the BJE to observe and monitor the actual implementation of the “comprehensive compact.”

The other salient points of the proposed MOA are:

Internal waters extending to 15 kilometers from the coastline belong to the BJE. Waters beyond the 15-km limit belong to both the government and the BJE.

The government and the BJE will share all natural resources such as gas, hydrocarbon, petroleum, etc.

The BJE has the sole power to revoke or grant forest concessions and enact agrarian laws, and to explore or obtain minerals, oil, natural gas, petroleum, etc. within its territory.

Stalled peace talks

Peace negotiations between the government and the MILF have been stalled on the contentious issue of ancestral domain since December 2007.

Only on July 25, informal talks aimed at getting the peace negotiations back on track broke down in Kuala Lumpur, with the MILF panel accusing the other side of trying to “undo” provisions in the “breakthrough” agreement forged on July 16.

The MILF said the meeting had been intended to finalize the text of the draft agreement on ancestral domain, but that the government panel led by retired general Rodolfo Garcia wanted certain settled issues reopened.

Stumbling blocks hurdled

But both Garcia and Press Secretary Jesus Dureza, himself a peace negotiator with the separatist rebels for more than 10 years, expressed optimism that the stumbling blocks would be hurdled and the peace process would go forward.

Indeed, on July 27, the government and MILF panels led by Garcia and Mohagher Iqbal, respectively, initialed the final draft of the agreement on ancestral domain, according to Executive Secretary Eduardo Ermita.

“This will lead to the signing of the MOA on ancestral domain on Aug. 5,” Ermita said.”

http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20080802-152289/Bangsomoro-to-get-own-state

This story breaking out on a Sunday will likely catch by surpise even the critics of the government of the day so I’ll delay any extended analysis until I am able pending consult more knowledgeable sources but this early it is abundantly clear to this writer that:

1) Palawan is being included in the Bangsamoro entity;

2) That entity is being given its own ‘basic law’, meaning a constitution;

3) It will be allowed to set up its own armed forces with delineated territorial limits.

This is a de facto separation of that southern section of what the governments touts as “a strong republic.

Absent any law on the introduction of a fderal system and absent any amendment of the 1986 Constitution, GMA is embarking on a path to dismember the Republic of the Philippines.

Postscripts to An Encounter With Mar Roxas

Postscript:

Blogger ‘marocharim’ was also and encounter and I missed his exchange with Senator Mar about Dark Knight and Mar’s responses were gems given the duality or multi-faced ‘balimbing’ character of many Filipino politicians:

“I’m not a very political blogger (and if that was a lie, let lightning strike me), and I sort of got confused with all that had to do with my question about E-VAT. My theory is that a lot of politicians can answer a VAT question unfazed. So I decided to ask the Senator a “cute” question (as Ma’am Noemi puts it)…

Sir, you watched The Dark Knight, right? Who would you want to have dinner with: Joker, Two-Face, or Batman?

Now let me just say that this is not a profound philosophical question, I just wanted to know his answer…

I’d really like to talk to Two-Face and ask… “What happened to you?”

Marochim also reports this important angle that I missed:

“It was also the launch of VirtualRally.net, which is a virtual form of EDSA where you can speak your mind about issues like VAT.”

Excerpted from http://www.marocharim.com/2008/08/02/marocharim-meets-mar-roxas/

Second Postscript:

A quick peek at that site at 4:10 am Manila time today the 2nd of August shows 39 rally participants, about two-thirds a bus-load so the govrrnment will not yet be fielding its own ‘virtual’ anti civil disturbance unit’ much less shout virtual ‘destabilization.

At this very early phase of VirtualRally.net this look like a potentially ground-shifting e-nnovation to the blogswarm mechanism. But note who is portrayed in the slightly bigger avatar among the rally ‘participants.

An Encounter With Mar Roxas

Further to my earlier post, the encounter with Filipino bloggers Senator Mar Roxas had yesterday gave me the distinct sense that this was a different Mar from the one this writer met, and had the honor to work with, when he was secretary of trade and industry serving President Arroyo in the immediate post EDSA 2 years.

Here was a man still cautious with his words but certainly more certain about his conviction that reforms must come now and be made to grow deep roots if the Philippines is to get out of the ecomic, and political, morass it is stuck in.

Here was a Mar Roxas ready to seek the highest office of the land wearing not rose-colored glasses but with eyes that have seen and continues to see the mass povery that stalks the land, even as there are Filipinos who can afford to buy, and drive Benzes and gas-guzzling Ford Expeditions for 3 to 5M a pop.

Truly “a statement about the wide gap between rich and poor Filipinos.” which he said makes him ask “just what does GMA have to show for the yearly national budget of one trillion pesos her government has spent since 2001 since she first took power?”

Through the more that two hours he spent yesterday with the bloggers, Mar showed himself to be a ‘listening’ politician, taking notes as he heard how Filipinos are harnessing blogging to share information and distill their aspirations as a people, regardless of where the politicians are taking Philippine society.

To be sure Mar will have to bring his message out more and he apparently recognizes the awesome power of new media.

Mar is launching his own blog. His handlers promise the blog will try to remain current and responsive with Mar himself, time permitting, doing the actual posts along with special contributors who reflect his thinking and positions on issues.

And as Mar, we hope, learned from yesterday’s session, he will come under closer scutiny once he joins blogosphere with his eye on 2010.

(Among those present at the session with Senator Mar were contributors from FilipinoVoices.com and ScoutAreaOnline (represented by senior writer Paolo Florenda) plus personalities like Ellen Tordesillas, Manuel Quezon III, Ricky Carandang, Noemi Dado, Gail Villanueva, Lester Cavestany, and the-jester-in-exile.)

Mar Roxas Asks: What Do We Have To Show For P7-Trillion?

Wasn’t able to stay for dinner with the other bloggers presumptive presidential candidate Mar Roxas had last night at Annabel’s in Quezon City.

But the initial 90 minutes with the good senator over peanuts, kropek and light beverages was enough for him to share with us his take on where the Philippines has been these past 7 years with Gloria Macapagal Arroyo at the helm and his take views on recent events.

Am still chewing on my notes so am sharing these initial bullets:

* Mar asks what the government of the day has to show for the 7 trllion pesos it has spent these last 7 years( give or take ’systems losses from graft and the generous 500,000-a-pop ‘gifts’ to palace visitors);
* Mar proposes the establishment of a ‘People’s Fund’ within the national budget where there will be a clear itemization of moneys to be allocated, and spent, on contingent events;
* Mar will vigorously pursue his call for E-VAT’s reform;
* Mar questions the wisdom of Romulo Neri’s selection as ’super secretary’ and points out the it is not the mandate of the Social Security System to be lumped among the government’s so-called pro-poor agencies.
* Mar points out the the SSS is the pension fun of its 24-million-plus private sector employee members and Neri’s legal responsibility, assuming he understands it, is to make that pension fund grow;
* Mar understands that Filipinos are looking for change they can believe in (my paraphrase);
* Mar believes the next 20 months can and should devoted to lay down the blueprint for the reforms necessary all within the framework of the Constitution.