Too Much To Bear

The fighting in Mindanao, the debate over the bungled Bangsamoro Juridical Entity, and yes, the highest inflation rate in 14 years of 12.5% are hugging the headlines, along with the extended presence of ‘visiting’ American troops in Zamboanga.

So it is understandable that the tragic sinking of MV Princess of the Stars nearly three months ago is not on the top of our minds of late.

But there is movement on the ground with salvage work on the ship wreck due to commence in several weeks at a cost of some P350-M to the owner, Sulpicio Lines. The Cebu-based shipping firm has recently reported that it has extended berreavement and other financial aid to more than 500 or is it 600 families of the dead and missing, many of whose remains are still entombed inside MV Princess of the Stars, once the lead vessel in Sulpicio’s fleet of inter-island passenger and cargo vessels.

It’s previously been reported that Sulpicio ships carry up to 40% of the commercial cargo ( including motor vehicles) to and from the Visayas, and Mindanao, making it a truly vital cog in the supply chain, as businessman call it.

The government has been trying to project acute awareness of this reality, attempting to balance the still highly emotional issue of the recent tragedy with the economic imperatives.

It is no surprise then that a key lieutenant of President Arroyo, her former Assumption schoolmate Elena Bautista, already undersecretary for maritime affairs, has just taken over the helm of the Maritime Industry Authority.

The MARINA, in turn has laid down a strict time-bound schedule for Sulpicio Lines to comply with stringent maritime safty standards, including retraining of its sea-going personnel, and upgraded insurance coverage.

To be fair, Sulpicio Lines appears to have shed its earlier bad handling of the crisis which including claiming the incident “was an act of God” and its seeming all-out ’sue everyone” legal tactic.

Government itself is not blameless in the affair with the negligence of key agencies in both the micro and macro sense (the inadequate seaworthiness certifications, the ‘white elephant’ maritime emergency communications system, and PAGASA’s failure to procure properly-budgeted weather tracking nd forecasting systems).

There is also the matter of the ticking environmental time bomb, given Del Monte Philippines’ highly toxic cargo of the Israeli-manufactured endosulfan pesticide which, if it leaks together with some 200,000 liter of bunker fuel still in the overturned ship, could wreak untold harm to the rich fishing waters of the Visayas.

But still, public perception, and blame-selection remains decidedly against Sulpicio even as the firm itself is reportedly struggling to literally stay afloat, operationally and financially.

Its competitors are even suspect of adding fuel to the fire by nudging negatively-slanted news and opinion reportage.

The Department of Justice’s Public Attorney’s Office (PAO) has also been ‘eager’ to stay in the news, prodding victims’ relatives to pursue damage, and criminal cases against SLI.

This writer has confirmed that the legally-required conduct of indigency certification tests for all litigants getting pro bono PAO legal aid has been waived.

Both houses of Congress are also not done yet with their inquiries “in aid of legislation” and there is, of course, a pending Board of Marine Inquiry recommendation for Sulpicio’s franchise, its Certificate of Public Convenience (CPC) to be revoked.

So given these very dire circumstances, what does lie ahead for Sulpicio Lines?

It almost seems too much to bear that last Thursday, Sulpicio’s MV Cotabato Princess rammed the Iloilo pier after reportedly being pished by heavy currents.

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.