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.

THE CA SCANDAL DEEPENS

The fire threatening to gut the Court of Appeals appears to have become a bigger conflagration.

Now the so-called 'mystery man' has come out.

Mr. Francis Roa De Borja confirms he spoke to Justice Jose Sabio. De Borja makes no categorical denial he had offered the justice a P10-bribe in exchange for Sabio to inhibit himself in the court's deliberations on the temporary restraining order stopping the Securities and Exchange Commission order to halt the MERALCO board elections.

But he reveals a disturbing twist: He claims Justice Sabio told him the government had also offered him "blandishments" to favor Winston Garcia and the GSIS, including elevation to the Supreme Court.

Garcia has issued a quick denial on the matter.

But taking the scandal in the context of an earlier June 28 Philippine Daily Inquirer piece written by Gerry Lirio:

http://services.inquirer.net/print/print.php?article_id=20080728-151111

The bigger equally disturbing picture that emerges is that two divisions of the Court of Appeals had actually been jostling with each other to decide on the case and that early on presiding justice Conrado Vasquez's intervention was sought by his colleagues.

The insightful PDI report says, in part, "

“The decision issued by the 8th Division of the Court of Appeals last week is not likely to settle the controversy between the Government Service Insurance System (GSIS) and Manila Electric Co. (Meralco) over the election recently of the utility’s directors.

On the contrary, the decision has reportedly triggered an internal protest by justices belonging to another appellate court division, who claimed jurisdiction over the case and questioned why it was “hurriedly” removed from their sala, according to documents obtained by the Philippine Daily Inquirer Sunday.

The 8th Division on July 23 had voided the order issued by the Securities and Exchange Commission (SEC) stopping and invalidating the Meralco elections on May 27, which was won by nominees of the Lopez family which controls the company.

The order, released to the press the following day, was signed by the division’s head, Justice Bienvenido Reyes, and its two members—ponente Justice Vicente Roxas and Justice Apolinario Bruselas Jr.

The GSIS, led by its president and general manager Winston Garcia, had challenged the Lopez family’s leadership of Meralco and sought the SEC’s intervention. Garcia demanded the validation of all the 4,483 Meralco proxies before voting could be allowed.

In its decision, however, the 8th Division ruled that the SEC had no jurisdiction over the case filed by the GSIS against Meralco, and that a regional trial court was the proper venue for controversies over elections in corporations.

The decision triggered scathing remarks from Justice Myrna Dimaranan Vidal, a member of the Special 9th Division, who said the 8th Division was not the proper body to rule on the GSIS-Meralco row.

In a letter to Presiding Justice Conrado Vasquez Jr. dated July 24, Vidal questioned the decision of the Reyes-led division. How could the 8th Division issue an order “much to her regret and consternation” when it was the 9th that had been hearing the complaint of alleged irregularities in the Meralco election, she said.

It was also the 9th Division that issued the temporary restraining order (TRO) on the SEC order to Meralco on May 30, she said.

Her “deepest regret,” she wrote, was that she had already signed a similar decision for the 9th Division, but the three justices of the 8th Division did not even bother to inform her “as a judicial courtesy at least” of her “hurried” removal from the case.

Aside from Vidal, the other members of the 9th Division are Justice Jose Sabio, chair, and, curiously, Roxas, who was also the ponente of the case.

“Under what basis was the case suddenly transferred to the 8th Division, and why was it that neither the undersigned nor the acting chair, Justice Sabio, of the Special 9th Division were not consulted thereof? And foremost, what happened to the decision which the undersigned signed after devoting her precious time and effort in carefully and laboriously examining the voluminous records of the case?” Vidal asked.

Sabio is expected to write a similar letter to Vasquez, according to CA sources.

Sabio’s division was called a special division because it was the result of the reorganization of the 23-division, 64-justice appellate court.

Available records do not show that either Reyes or Bruselas heard the arguments in the case, a source in the court claimed.

Even before the 8th Division promulgated its decision, both Reyes and Roxas were at a loss as to their jurisdiction over the GSIS-Meralco conflict. They wrote separate letters asking Vasquez to settle the issue.

Roxas sent his letter to Vasquez on July 21 while Reyes sent his on July 22, a day before the ruling was promulgated.

Vasquez replied in a letter dated July 24, saying he initially had doubts about his authority in the matter, but in as much as both Reyes and Roxas had sought his legal opinion, he was constrained to express that he “sincerely believed” that it was the Special 9th Division which issued the TRO and had been hearing the case that should rule on the case.

“With this opinion, it is sincerely hoped that the present predicament/controversy will be laid to rest, and whomsoever is dissatisfied with its outcome may elevate the matter to the Supreme Court, for final disposition,” he said in the letter, a copy of which was seen by the Inquirer.”

Justice Vasquez apparently failed to sort out his cooleagues' squabble in time,

The scandal that has broken out is rocking the Court of Appeals to its very foundations and the onus is on the Supreme Court now to sort out this thoroughly sordid mess.