From the News! – Your Daily News

Soliman Santos, Jr.
Inquirer.net

THESE are initial notes based on the Supreme Court <http://blogs.inquirer.net/voxpopuli/2008/10/17/notes-on-the-sc-decision-on-moa-ad/#> Public Information Office bulletin of October 14, 2008, titled “SC Declares MOA-AD Unconstitutional” and a quick scanning of the 87-page majority Decision of the same date penned by Associate Justice Conchita Carpio Morales based on an 8-7 vote declaring the MOA-AD “contrary to law and the constitution.”

Those who joined her in the majority are Chief Justice Puno and Associate Justices Santiago, Carpio, Azcuna, Reyes, Quisumbing and Martinez, all of whom except the last two wrote separate concurring opinions. Those who voted to dismiss the petitions were Associate Justices Tinga, Nazario, Velasco, Nachura, De Castro, Brion and Corona, all of whom except the last wrote separate dissenting opinions. (All these separate opinions are not with me as of this writing). Being initial notes, we limit ourselves to main points on the key thrusts of the Decision and their implications.

The aforesaid majority declaration is based on two substantive issues: [1] that the respondents GRP Peace Panel and Presidential Adviser on the Peace Process (PAPP) violating constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD; and [2] that the contents of the MOA-AD violate the Constitution and the laws. [p. 36] “MOA-AD” actually refers to the final draft of the “Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001.”

The Decision also finds “grave abuse of discretion” in respondents exceeding their authority by agreeing to Paragraph 7 under the Governance strand of the MOA-AD that “virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place” which is (as far as amendments to the Constitution are concerned) a “usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves.” [p. 87]

PAPP Esperon in particular was found to have “committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated” (by EO 3, the Local Government Code, and IPRA) [p. 86].

The Decision, in dealing with the contents of the MOA-AD, summed it up this way: “The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely the associative relationship between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.” [p. 86, underscoring and bold face in the original]

The effect of this ruling would appear to be to confine future peace negotiations with the MILF, and for that matter other rebel groups, “within the box” of existing provisions of the Constitution and national laws. The reported (by the SC PIO) pronouncements of the Chief Justice and others in the majority tend to reinforce this. CJ Puno wrote that “the President as Chief Executive can negotiate peace with the MILF but it is peace that will insure that our laws are faithfully executed… without crossing the parameters of powers marked in the Constitution.” He added that “respondents’ thesis of violate now, validate later makes a burlesque of the Constitution.” Associate Justice Carpio said that in negotiating the MOA-AD, the Executive branch “committed to amend the Constitution to conform to the MOA-AD.” These statements reflect a rather conservative judicial view of the MOA-AD negotiation effort that does not augur well for similar efforts.

The SC PIO bulletin says that the Decision “enjoined the respondents and their agents from signing and executing the MOA-AD or similar agreements.” There appears to be nothing as explicit as that in the Decision but that could be the effect. The Decision notes that the MOA-AD, as “a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace” of 2001, “can be renegotiated or another one drawn up that could contain similar or significantly dissimilar [or drastic] provisions compared to the original.” [p. 84, see also p. 34]

Precisely, because of this prospect of renegotiation of the MOA-AD “in another or in any form” to carry out the Ancestral Domain Aspect of the Tripoli Agreement on Peace of 2001, the Court was “minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain.” [p. 34, underscoring and bold face in the original]

Are future peace negotiations now therefore necessarily confined “within the box” of existing provisions of the Constitution and national laws? Not necessarily. Because the Decision itself provides some opening for that albeit with due regard to non-derogation of separation of powers particularly the matter of constituent powers in proposing and adopting amendments to the Constitution. In the discussion in pp. 71-73, there are these guidelines:

The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision.

“While the President does not possess constituent powers … she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers.”

From the foregoing discussion, the principle may be inferred that the President – in the course of conducting peace negotiations – may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.
In other words, these guidelines do not necessarily preclude, but on the contrary inform, any subsequent effort to reframe the GRP-MILF peace negotiations as constitutional negotiations – which they should be, in order to settle the relevant constitutional issues once and for all, otherwise the charge of unconstitutionality will always be raised when a better form of self-determination is sought for the Bangsamoro people in order to solve the Bangsamoro problem.

The Decision, to its credit, does touch a bit [in p. 69] on peace-building and constitution-making by quoting from an American law journal: “Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up rules by which the new democracy will operate.”

The SC PIO bulletin’s quote from the dissenting opinion of Justice Nazario is what to us is the right perspective on these negotiations: “In negotiating for peace, the Executive Department should be given enough leeway and should not be prevented from offering solutions which may be beyond what the present Constitution allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by completely legal means.”

The other major legal guideline for any subsequent effort is, of course, that on public consultation and the right to information. This brings us back to the substantive issues that were the basis for the Decision declaring the MOA-AD “contrary to law and the Constitution” as well as ruling the respondents to have “committed grave abuse of discretion.” These rulings are reconsiderable, i.e. can be the subject of a Motion for Reconsideration.

Whatever violation of constitutional and statutory provisions on public consultation and the right to information when respondents negotiated and later initialed the MOA-AD is not as sweeping or as grave as has been made to appear.

The numerous documented consultation and information efforts by respondents (including in the local government units of most petitioners), even granting the consultation and information inadequacies during a process of difficult negotiation and hard bargaining, should be made clear on the record, at least for possible reconsideration of the “grave abuse of discretion” ruling.

PAPP Esperon in particular is unfairly singled out to have “committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated… “ [p. 86] But he just got into the job in June 2008! – at the tail end of the MOA-AD negotiation process of three years and eight months since 2005.

As for respondents supposedly exceeding their authority by agreeing to Paragraph 7 under the Governance strand of the MOA-AD that “virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place” [p. 87], this interpretation of Paragraph 7 as a “guarantee” or “commitment” to the MILF “to amend the Constitution to conform to the MOA-AD” is highly debatable, to say the least. There is definitely no “usurpation of the constituent powers…” on the part of respondents. The respondents were all along following a recommendatory mode vis-à-vis their principal, the GRP – along the lines in the above-quoted paragraphs of the Decision.

As stated in the “Supplement to the Memorandum for Intervenors Consortium of Bangsamoro Civil Society and Bangsamoro Women Solidarity Forum, Inc.” dated 28 September 2008 in support of respondents [at pp. 47-48]:

Such needed constitutional amendments, as well as needed administrative action and new legislation, in pursuit of reforms aimed at addressing the root causes of the armed conflict, are well within the authority, mandate and parameters of the GRP Peace Panel to submit by way of recommendations to the Executive as a result of long discussions and eventual consensus at the negotiating table. Thereafter, the Executive may consider these for appropriate action by itself, or coordination with and referral to the Legislature which may then take the necessary legislative and constitutional processes.

As also argued in that CBCS-BWSF Supplement [at pp. 54, 78], Paragraph 7 under the Governance strand of the MOA-AD should not be seen negatively as “making the Constitution conform to the MOA” but rather as a matter of good faith implementation of peace agreements through constitutional processes that may include any necessary amendments or revisions of the Constitution, as would be the approach too with certain international obligations.

In the context of recommendatory amendments to the Constitution to address pursue reforms to aimed at addressing the root causes of the Moro armed struggle, it is unfair to the MOA-AD negotiation effort and the whole GRP-MILF peace negotiations to prematurely shoot down a mere preliminary (to a final) peace agreement just because the Decision finds that on its face, “The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept [associative relationship] underlying them.” [p. 86] This early shooting down preempts and prejudices the whole peace process effort.

For the Decision to say that “the concept [of associative relationship] presupposes that the associated entity is a state and implies that the same is on its way to independence” [p. 87] is again highly debatable. There are states and there are states, including constituent states in a federal republic and associated states. But these said states are not sovereign independent states. There is nothing in the MOA-AD about a grant of independence to the Bangsamoro – even if they have good grounds for this (and maybe the Decision has just reinforced those grounds).

These questions of substantive constitutionality of the MOA-AD’s key provisions, as well as the numerous documented consultation and information efforts by respondents, were presented and discussed in the CBCS-BWSF Supplement [pp. 50-52, 56-79, also Annexes 3 & 4], even as these were not presented and discussed in the Memorandum of Office of the Solicitor General. Unfortunately, it appears that the Decision had not taken note of that CBCS-BWSF Supplement and its considerable set of Annexes, including especially information materials on the ancestral domain negotiations.

As we said, this is just an initial quick reading and commentary on some key thrusts in the Supreme Court Decision declaring the MOA-AD “contrary to law and the Constitution.” There is no doubt more to be done in terms of deeper and more thorough reading and study of the Decision, as well as the separate concurring and dissenting opinions, including their discussions of international law and indigenous peoples rights in relation to the peace negotiations. This is more than an academic exercise, for what really matters is its implications on the fate of the GRP-MILF peace negotiations, which is basically to say the fate of war and peace in Mindanao.

Atty. Soliman Santos Jr.
Manila Times

1. Is the memorandum of agreement on ancestral domain (MOA-AD) the Final Peace Agreement?

No. It is a sub agreement on the third substantive aspect identified by the Parties under the Government of the Republic of the Philippines (GRP)—Moro Islamic Liberation Front (MILF) Tripoli Agreement on Peace of 2001. Once the MOA-AD is signed, the Panels will move on to discuss the issues that will be carried to the final peace accord (or Comprehensive Compact).

2. In brief, what does the MOA-AD contain?

It contains general principles concerning, among others, Bangsamoro identity and rights, the establishment of a genuine self-governance system appropriate for them, the areas to be placed under this self-governance system, and the protection and utilization of resources found therein.

3. Is the concept of “ancestral domain” discussed in the negotiations the same concept as in the Indigenous Peoples Rights Act (or IPRA, R.A. 8371)?

No. While “ancestral domain” in the context of IPRA is tenurial (i.e. recognition and protection of traditional collective land areas—or domain—belonging to an IP clan/group), the issue of “ancestral domain” in the context of the GRP-MILF negotiations has a political dimension.

Under IPRA, an IP clan/group claiming a certain area of land as their ancestral domain or ancestral land will ideally be awarded certificates of ancestral domain/land title (CADT or CALT) to show their collective ownership of the area. They are therefore entitled to certain rights over their ancestral domain/land, such as the right of ownership, the right to regulate the entry of migrants, priority rights in utilizing resources, a share in the revenue derived from the utilization of resources by other parties, etc.

In the GRP-MILF negotiations, areas identified are those that will be placed under the political jurisdiction of the prospective Bangsamoro self-governance system (generically termed as a Bangsamoro juridical entity or BJE).

4. What are these so-called “Consensus Points” in MOA-AD negotiations?

These are agreements in principle reached by Parties during the initial stages of discussions on AD (Seventh and Ninth Exploratory Talks in 2005). Consisting 26 items of general ideas and concepts, the consensus points provide the overall parameters and foundation of AD discussions. These consensus points have since been carried over and/or expanded into the present draft MOA-AD.

5. Why is there so much confidentiality involved in the negotiations?

Since the start of the negotiations, the GRP and MILF Panels, along with the Malaysian facilitators, have adopted a set of protocols meant to foster the confidence and trust of the Parties at the negotiating table. Among these is a mutual understanding that all pending matters under negotiation are kept confidential in order to avoid preempting the substantive discussions and undermining the integrity of the talks.

Since 2001, however, the GRP Panel has been providing regular updates on the peace process to strategic audiences, and in the process avail of views and insights from the ground.

Actual deliberations over the text of the draft MOA-AD itself started during the 11th Exploratory Talks in March 2006 and continues to this day. The deliberations had been punctuated at times by periods of impasse or cancellations in previously scheduled talks. Presently, there are around 31 items of agreed text on the draft AD MOA, and three additional residual items awaiting formal resolution.

6. Are the MOA-AD and the prospective Comprehensive Compact unconstitutional?

No. Although the agreement will contain provisions that ultimately describe the relationship between the Central Government and the BJE, it also indicates clearly that it is prospective and non-executory.

In the extensive legal consultations conducted by the GRP Panel with various experts, it was found out that the self-governance system for the Bangsamoro people (i.e. BJE) being proposed by the MILF will contain elements having Constitutional implications. Indeed, people will always view their aspirations and collective vision beyond any legal prism.

Notwithstanding the above, however, the agreement will also recognize that provisions requiring possible amendments to the existing legal framework shall be executory only after we are able to effect the necessary changes to the legal framework.

7. What is the Bangsamoro Juri­di­cal Entity?

“Bangsamoro juridical entity” is a generic term referring to the proposed self-governance system contemplated under the GRP-MILF peace negotiations.

8. What is the difference between the Autonomous Region in Muslim Mindanao (ARMM) and BJE?

The ARMM is the self-governance system for the Bangsamoro people under the 1986 Philippine Constitution and RA 9054 “The Expanded ARMM.”

If and when a final peace agreement with the MILF is signed, eventually the ARMM will be transitioned into the BJE. The BJE is envisioned to enjoy more autonomy, more powers and more territory.

The powers to be devolved to the prospective BJE touches on a range of familiar issues such as executive, legislative and judicial arrangements, powers over taxation, fiscal authority, institution building, revenue sharing, representation in National Government on matters directly affecting the BJE, etc. However, the details of all these will still be the subject of future discussions in the Final Peace Agreement called the Comprehensive Compact.

9. What happens, therefore, to the implementation of the 1996 GRP-MNLF Final Peace Agreement (FPA)? How can Government implement the 1996 GRP-MNLF FPA and the prospective GRP-MILF final agreement when we are talking of the same people, the same area and the same self-governance system for the Bangsamoro people?

In a broader sense, the prospective BJE intends to be the fulfillment of the Bangsamoro people’s struggle for their rights and aspirations—begun by the Moro National Liberation Front (MNLF) and pushed to completion by the MILF.

The 1996 FPA will continue to be implemented until the implementation process achieves full closure. Government will build on the ARMM setup in order to fulfill its commitment under the prospective GRP-MILF agreements, even as it will seek later on to transform the ARMM into the BJE. Second, GRP’s track record in implementing the 1996 FPA will also reflect on its political will to implement a prospective agreement with the MILF.

Both the ARMM and the contemplated BJE belong to the Bangsamoro people, and neither to the MNLF nor the MILF. The objective of their armed struggle is the advancement of the Bangsamoro people’s rights and aspirations. If either the ARMM or BJE proves to be the path to attain this objective, then the struggle would have been won.

But for the vision to work, the entire Bangsamoro people—MNLF, MILF, local political leaders, traditional leaders, community members, individual tribes—must all reach out to one another and forge for themselves a modus vivendi, and a common direction in pursuing their political and socioeconomic destiny.

10. Who will govern the prospective BJE when it is finally in place?

Those who will be chosen by the people within. The same principles respecting the fundamental right of the constituents to choose their leaders will be respected.

11. What areas will be included in the BJE?

The areas under contemplation include the following: (a) the present geographic area of ARMM; (b) municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal, in Lanao del Norte that voted “yes” in 2001 plebiscite and; (c) around 735 barangays wherein a plebiscite will eventually be conducted

12. Will Indigenous Peoples (IPs) be included in the BJE?

Inclusion of areas into the BJE will require a plebiscite to be administered to all affected communities and residents—Moros, settlers and Lumads. If a community, by virtue of plebiscitary consent, decides in favor of inclusion, then it will be respected.

13. Will the BJE be given ownership of its own maritime areas?

No. Rather, the BJE and the component local governments within shall have jurisdiction over the management and utilization of natural resources within the 15-km municipal waters. This is consistent with rights of local governments over municipal waters, and IP rights over ancestral waters, which are all still part of the internal waters of the Philippines.

The GRP is also looking into joint management arrangements over strategic resources (i.e. oil, natural gas) found in territorial waters extending immediately beyond the 15-km zone under the BJE. Again, it must be pointed out that this prospective arrangement will only be effected if and when we are able to effect the necessary changes to our legal framework.

14. Will BJE have jurisdiction over the natural resources found therein like timber, mines, etc?

Yes. In fact, such powers are already granted to the present autonomous government. They can even regulate certain activities within the area, such as logging operations for instance.

15. What will happen to operating licenses and similar instruments (like Industrial Forest Management Agreements, Technical Licenses Agreement, etc.) already issued beforehand?

These will continue to operate until they either expire, revoked with due cause, or renewed. The MOA-AD will have an explicit provision respecting all existing and vested property rights.

16. Will private properties of settlers and ancestral domains of IPs be confiscated from them later on?

No. Again, the MOA-AD will have an explicit provision respecting all existing and vested property rights.

17. Will MILF fighters be integrated into the Armed Forces of the Philippines or the Philippine National Police (PNP)?

The Parties have not yet discussed this specific issue at the negotiating table. There are arrangements for an internal security force in the prospective BJE, and this issue is similar to what transpired during the negotiations with the MNLF. Again, this will be taken up in the discussions at the Comprehensive Compact stage.

For the GRP, we intend to put forward proposals on a long-term framework for the normalization of communities. This must run alongside a comprehensive government program to eliminate the proliferation of loose firearms in Mindanao.

18. What is the nature of the internal security force contemplated in the BJE?

There are no detailed discussions on this issue yet. As a starting point for the GRP, however, we can make use of a precedent found in Sec. 2, Art. XIII of Republic Act 9054 (ARMM Organic Charter) concerning the Special Regional Security Force (SRSF). Under this arrangement for example, the SRSF is composed of existing PNP units, the MNLF elements, and other residents of the area who would opt to join in following certain recruitment standards. Of course, said structure is ultimately under the general supervision of the national government.

19. Will the Panels eventually discuss the disarmament, demobilization and reintegration (DDR) of the MILF?

The Government will push for discussions on DDR at the appropriate juncture of the negotiations on the FPA stage.

We have learned from the MNLF experience that in the absence of a well-designed and holistic DDR component in the peace agreement, some fighters still tend to resort to violence when the implementation process encounters difficulties and delays, or when they do not benefit tangibly from the fruits of a peace settlement.

Peace process models in other parts of the world (Sin Feinn in Northern Ireland, GAM in Aceh, FRETELIN in East Timor, etc.) have successfully showcased that in a post-peace settlement scenario, it is possible for revolutionary groups to later on shift their arena of struggle—from armed (rebel group) to parliamentary (political party)—where they are free to advance their political programs and compete for political power through the electoral system.

The massive presence of loose firearms in Mindanao, as well as the culture of rido (family feuds), are among the factors which will complicate the planning and execution of a successful DDR. We need to also institute parallel government programs addressing these issues alongside the implementation of DDR.

20. How will the MOA-AD and the prospective Comprehensive Compact be operationalized?

The AD MOA itself is a non-executory document and still subject to further discussions as to the details of its provisions. Once the details are discussed and agreed on, these will be incorporated, among others, into the Comprehensive Compact document.

To implement provisions of the agreement, the Executive branch will undertake the necessary processes, where needed, to effect changes to the existing legal framework. This will range from the passage of the necessary executive issuances (E.O.), national laws (R.A.), and perhaps Constitutional amendment (via Constituent Assembly or Constitutional Convention) to legally entrench our arrangements on the BJE.

We have faith that there is bi-partisan support for the peace process, and that the other branches of government will help the executive pursue the attainment of lasting peace in Mindanao. The three decades of armed conflict has affected the entire country. Its solution is our shared responsibility.

21. Is the prospective BJE envisioned to exist under a federal form of government?

The ongoing negotiations focus on the substance of governance, rather than the form of government.

In terms of substance, we know that amendments to some provisions of the Constitution (probably, Art. X on Local Government and Art. XII on National Economy and Patrimony) may be necessary to give full effect to our agreement.

In terms of form of government, many legal experts are of the opinion that the agreement will find more pragmatic application when a federal system is in place. In the end, this will be a matter of collective judgment on the part of the Bangsamoro people and the rest of Philippine society.

However, we welcome the strong bi-partisan initiatives of some of our legislators who push for federalism, and see it as a viable track to help solve the Mindanao problem. When such an opportunity becomes evident, we will leave it to the wisdom of the framers on how they see themselves contributing to the achievement of lasting peace in Mindanao.

22. Does the ancestral domain issue also involve discussions on compensation, reparation, and the like?

The issue of compensation or reparation for properties lost or destroyed by reasons of the conflict on the part of displaced individuals and families is already included in the Implementing Guidelines on Humanitarian, Rehabilitation and Development signed in May 2002.

The MOA-AD affirms this principle, and it will include a provision on restitution measures for unjust dispossession and marginalization of displaced persons and communities. This will have to be studied and evaluated by the Parties on a case-to-case basis.

23. What happens to settlers and Lumad communities who will be situated later on within the prospective BJE?

There will be no effect on the fundamental rights, properties and personal circumstances of settlers and Lumads. The principles of equality, respect for cultural integrity, and the rule of law will be recognized at all times. Good governance will ensure that these rights are protected at all times, and the basic needs of communities—regardless of cultural persuasion and religion—are satisfied.

24. Is the MOA-AD bereft of respect for civil and human rights?

There is no truth to the hysterics that the unsigned GRP-MILF MOA-AD is “bereft of respect for civil and human rights” and that its proposed BJE shall possess and exercise “absolute powers without any of the civilized limitations in the Bill of Rights . . .” One has just to look mainly at the “Terms of Reference [TOR]” at the start of the MOA-AD. The seventh paragraph therein states as a TOR:

“ILO Convention No. 169, in correlation to the UN Declaration of Rights of the Indigenous Peoples, and Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997, the UN Charter, the UN Declaration of Human Rights, International Humanitarian Law, and internationally recognized human rights instruments.”

The second, third and fourth paragraphs of the TOR in turn mention three earlier interim but framework agreements in the GRP-MILF peace negotiations:

1. The General Framework of Agreement of Intent (GFAI) between the GRP and the MILF dated August 27, 1998

2. The Agreement on the General Framework for the Resumption of Peace Talks between the GRP and the MILF dated March 24, 2001

3. The Tripoli Agreement on Peace (TAP) between the GRP and the MILF dated June 22, 2001

In the GFAI of August 27, 1998, an important early framework agreement which deserves more attention than it is usually given, there is Article II which states: “The Parties affirm their commitment to protect and respect human rights in accordance with the principles set forth in the Charter of the United Nations, and the Universal Declaration of Human Rights.” There is also Article V, which states: “The parties recognize that there will be lasting peace in Mindanao when there is mutual trust, justice, freedom, and tolerance for the identity, culture, way of life and aspirations of all the peoples of Mindanao.”

It is clear under the MOA-AD that the powers of the BJE are not “absolute” and that these are with “civilized limitations.” The so-called “civilized limitations in the Bill of Rights” are found in other legal instruments, which are mutually acceptable to the parties like those mentioned in the early above-quoted seventh paragraph of the TOR of the MOA-AD. That would include what is known as the “International Bill of Rights”—the 1948 Universal Declaration of Human Rights; the 1966 International Covenant on Civil and Political Rights; and the 1966 International Covenant on Economic, Social and Cultural Rights. In fine, the Bill of Rights of the Philippine Constitution is not the only, nor even the best, legal instrument on civilized limitations to governmental powers.

The non-mention in the MOA-AD of the Bill of Rights and for that matter the Constitution itself, is understandable because of the MILF’s consistent objection from Day 1 to the Constitution as a TOR or framework for the peace talks. This negotiating position is only natural for any revolutionary force (just like the NDF, for that matter), which seeks the overthrow of, or separation from that constitutional order or entity. Those who insist on the mention of the Constitution as a TOR or framework in these peace negotiations do not really understand the armed struggles that these negotiations are trying to resolve. Those who make peace negotiations impossible by imposing the Constitution will make continued armed struggle inevitable.

Atty. Soliman Santos, Jr. is a Bicolano human rights lawyer, peace advocate, legal scholar; A.B. History cum laude (UP), LL.B. (UNC), LL.M. (Melb); author of The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).

Federico D. Pascual Jr.
Philippine Star

MARCH BACKWARD: Sometimes we have to make one step backward before making two steps forward. That, we understand.

But the Cha-cha boys of President Gloria Arroyo are furiously beating the drums to stampede the country into taking not one back step or two forward steps but to MARCH BACKWARDS all the way to an ill-defined federal system of government.

The dream and direction of most developing nations is to gather scattered elements and meld them into one unified state despite their cultural diversity.

The Arroyo administration, however, wants the Philippine Republic to go in the OPPOSITE DIRECTION! It wants to cut up the country into several states and then salvage the situation by pulling them together under a federal umbrella.

While other countries are striving hard to unite, tayo, we are trying to divide ourselves.

The irony is that our own leaders are the ones moving to dismember the nation. What for? To advance their own political agenda.

*      *      *

MORO RAMPAGE: Maybe it is providential that the separatist Moro Islamic Liberation Front has taken off its mask and bared its bloody fangs.

Continuing their rampage in Lanao yesterday, MILF fighters hacked or shot to death at least a dozen persons and took several hostages, burned houses, and battled government troops and policemen rushing in to enforce the law and restore order.

In the face of this virtual declaration of war, President Gloria Arroyo, the Commander-in-Chief, ordered government forces to “defend every inch of Philippine territory,” protect the population and maintain the majesty of the law.

She called an emergency meeting of the National Security Council yesterday. After the meeting, we will know if naiveté still characterizes official policy and the handling of rebellion.

Another thing to watch for is the usual call for a ceasefire when the rebels start to feel the pressure. Intended or not, a lull gives the rebels a chance to lick their wounds, regroup and spring back to action.

*      *      *

APPEASEMENT: The Arroyo administration had trusted the MILF enough to sit down with it in a so-called “peace process” while negotiating an agreement laying the basis for a Bangsamoro state.

There are reports that Malacañang only accommodated a White House request to lend an ear to the MILF. This was after the United States — looking for a Muslim group to use — excluded the MILF from its list of terrorist organizations.

This is the same “liberation front” that Malaysia — pretending to be a neutral Third Party Facilitator — has encouraged to break away from the Philippine Republic.

To the MILF and like-minded Moro bands, “peace” apparently means appeasement, or even surrender, on the part of the government.

*      *      *

TRUE VOICE: The MILF rampage validates the point made in Postscript that it was a mistake for the government to have recognized the secessionist group as an equal at the negotiating table and accepted it as the authentic representative of the peace-loving Muslim population.

Corollary to this is another point, also made in Postscript, that the democratically elected leaders of the Autonomous Region in Muslim Mindanao — not the MILF — are the true voice of Moros in the South.

How come it never occurred to the White House, or to Malacañang, to consider talking instead to the elected leaders of the ARMM?

History is replete with lessons, including this latest warpath of the MILF, on the need to be cautious when dealing with terrorists.

*      *      *

BERNAS AD: Fr. Joaquin Bernas, SJ, may want to make a more categorical statement about his role in preparing that full-page newspaper advertisement defending the government position on its MoA with the MILF on the Moro ancestral domain.

As it is, his name was placed prominently like a validating signature at the bottom of the ad, giving the impression that he was the authority making all those misleading statements in that MoA “Executive Summary.”

The MoA summary in the Bernas ad touched superficially on the subjects of Concept, Territory, Resources and Governance in the Bangsamoro Juridical Entity sought to be created. The text did not reflect the full and true content of the MoA.

With his name used as authority, Father Bernas became a party to the deception. If the good priest and Malacañang really want to help enlighten the public, they should publish the full text of those subjects instead of truncated paraphrases.

*      *      *

HALF-TRUTHS: Under Territory, for instance, the Bernas ad merely said that the Ancestral Domain in question consists of the ARMM, some 721 barangays adjacent to it, and those in listed provinces to be covered by the proposed plebiscite.

His ad conveniently omitted saying that the MoA mentions ancestral lands in Mindanao, Sulu and Palawan. The reader gets the true picture only when he sees the Minsupala mentioned, instead of nameless barangays and provinces in the ad.

Father Bernas, dean emeritus of the Ateneo Law School, should not lend his name, that of the Ateneo and the Society of Jesus to half-truths.

Another point, already made in Postscript but which bears repeating, is that the dismembering of the Republic is too serious a matter to be left to lawyers to decide. Or even to the Supreme Court. They will approach the questions, and the SC will rule on the issues, only on the basis of law.

But we know that this matter is more than a question of law. An act may be legal but not necessarily right.

*      *      *

ePOSTSCRIPT: Read current and old POSTSCRIPTs at www.manilamail.com. E-mail feedback to fdp333@yahoo.com

Katherine Adraneda
Philippine Star

Some 80 percent of internally displaced persons (IDPs) caused by armed conflicts in the country are women and children, according to a study commissioned by the United Nations Children’s Fund (UNICEF).

In the study made by Center for Women’s Resources (CWR), the women and children displaced by internal conflicts are considered inevitable “spoils of war.”

It also said that women suffer undue stress brought by armed conflict since they are most affected by the hostilities.

They incur stress-related illnesses due to distress, anxieties and frustrations while many suffer sleeplessness and nightmares, the CWR said.

“The real picture of the military operations in Mindanao is of mothers and their children scurrying for safety, frightened, and crowded in evacuation centers,” said Jojo Guan, executive director of CWR.

CWR warned the raging hostilities between the military and the Moro Islamic Liberation Front (MILF) rebels in Mindanao would not only disrupt lives and dislocate women and children from their community and livelihood sources, but also pose grave health risks.

As part of the study on the effects of militarization on women and children, the UNICEF-CWR paper said pregnant women would suffer miscarriage and in some cases, premature birth.

The CWR study further noted women and children displaced by the fighting get sick in evacuation centers due to congestion and unsanitary conditions.

In some instances, the adverse conditions in evacuation centers even lead to infant deaths.

“The government places the total number of people displaced by armed conflict between 2000 and 2007 at 2.1 million,” Guan pointed out.

“In January to August 2008, an estimated 190,000 people were displaced, add to that the 160,000 people recently displaced due to the ongoing conflict in Mindanao.”

The CWR study mentioned an “observed tendency toward longer-term displacements” in armed conflict-affected areas, as more civilians prefer not to return to the locations of their previous homes.

The study noted that human security in the armed conflict areas has also deteriorated as a result of militarization.

The study said displacement leads to further violence against women where they are forced to head the household after the breakdown of a family and social networks.

Women might also be particularly at risk of sexual violence, as some of them are sometimes forced to prostitution in exchange for food, shelter or protection.

Human trafficking and rape are the other unfortunate by-products of war that women fall victim to, the CWR said.

“Women and children are already in danger—with the present economic crisis, the threat of poverty and hunger is very real. The longer their condition is not alleviated, the more they are at risk,” CWR said.

Guan said the government should work on alleviating the widespread poverty that is most felt by women and children.

Edith Regalado
Philippine Star

DAVAO CITY – New People’s Army (NPA) rebels continued their rampage in Southern Mindanao, raiding three banana plantations in the outskirts of this city Wednesday night.

Chief Superintendent Andres Caro II, Southern Mindanao police director, said the guerrillas swooped down on the banana plantations after their owners refused to pay so-called “revolutionary taxes.”

Interior and Local Government Secretary Ronaldo Puno is expected to meet with the Regional Peace and Order Council today to assess the security situation in the region.

Reports said at least 20 NPA rebels led by Leoncio Pitao, alias Kumander Parago, first attacked the Cabaguio Farms in Sitio Fatima, Barangay Mandug, about 20 kilometers from the city proper, at around 7:30 p.m. Wednesday.

The insurgents, who arrived on board a Hyundai Starex and Mitsubishi L300 van with license plates LCD 581 and LWW 201, respectively, held the farm’s laborers hostage and took all the SIM cards of their cellular phones.

The guerrillas then torched four dump trucks and two backhoes owned by engineer Ruben Quigue of Cabaguio Farms.

After attacking Cabaguio Farms, the rebels aboard the L300 van reportedly swooped down on the hangar of Lapanday Farms, firing their guns indiscriminately. There was no aircraft at the hangar at the time of the raid.

From Lapanday, the rebels proceeded to the farm of a certain Nonoy Rodriguez in adjoining Barangay Tigato where they divested the security guards of 9-mm and caliber .22 pistols and two shotguns.

They commandeered another vehicle for their escape after their Mitsubishi L300 conked out.

The insurgents aboard the Starex van went to Barangay Callawa, and the rest of the group proceeded to Barangay Tigato where they forcibly took a passenger jeepney that brought them to Barangay Mandug.

Upon reaching Barangay Mandug, reports said the guerrillas abandoned the jeepney and forcibly took a Toyota Prado, which they later left in Barangay Callawa, as they fled to the mountain on foot.

The STAR learned that the Starex and L300 vans, owned by a certain Benito Sabido, were contracted by a certain Danilo Burlat for a supposed trip to Pindasan, Davao Oriental.

Burlat reportedly instructed the vans’ drivers to proceed to the Victoria Plaza shopping mall along J. P. Laurel Avenue here where a man and a woman boarded each vehicle.

The vans proceeded to Barangay Acacia where Pitao and his followers boarded them.

Last Wednesday, government troops foiled an NPA attempt to torch a Globe Telecom tower in Boston, Davao Oriental.

A number of rebels were believed wounded in the 15-minute gunbattle that ensued.

Guerrillas, however, succeeded in bombing a Globe Telecom cell site in Pinukpuk, Kalinga last Sunday, prompting heightened police alert in the province and elsewhere in the Cordillera region.

Chief Superintendent Eugene Martin, Cordillera police director, said at least 30 heavily armed NPA guerrillas swooped down on the cell site compound at around 9:30 p.m. Sunday, and tied up the lone security guard, Manuel Labbutan Jr., and his wife who was delivering his supper, before planting sticks of dynamite on the base of the tower.

Police said Labbutan’s brother Amboy rushed to the cell site where one of the rebels struck him with a piece of wood.

Amboy left and later returned with a bolo, hacking a guerrilla to death and helping Manuel and his wife escape.

Also in Pinukpuk, Kalinga, three soldiers on a civil-military outreach mission with their colleagues were killed in an NPA ambush yesterday.

Unverified reports said the rebels took another soldier hostage.

– With Jaime Laude, Artemio Dumlao, Myds Supnad, Charlie Lagasca and Roel Pareño

Manila Times

ZAMBOANGA CITY: Philippine peace negotiators and Moro Islamic Liberation Front (MILF) rebels reached an agreement late Wednesday on the issue of ancestral domain, a breakthrough in the seven-year-old peace talks aimed at putting an end to more than four decades of bloody fighting in southern Mindanao.

Philippine peace adviser Secretary Hermogenes Esperon Jr. said both panels agreed on the deal at the end of the meeting in Malaysia, which is brokering the negotiations.

“The issue on the ancestral domain is finally settled and we now go to the final peace talks where all previous agreements will be formally signed. We have informed President Gloria Arroyo about the progress of the talks and she is very elated,” Esperon told The Manila Times.

The MILF earlier in the day said the issue on the ancestral domain must be resolved immediately. It warned that it will not sign any peace deal with the Arroyo government unless its demand for self-determination is granted.

Peace talks were stalled in September last year after both sides failed to sign any agreement on the most contentious issue—ancestral domain—which refers to the rebel demand for territory that will constitute a Muslim homeland.

Ancestral domain is seen as the single most important issue in the peace negotiations before the rebel group can reach a political settlement with the Philippine government.

The ancestral domain covers the whole of the Muslim autonomous region and other areas in Zamboanga del Norte, Zamboanga del Sur, Zamboanga Sibugay, North Cotabato, Sultan Kudarat and Sarangani provinces where there are large communities of Muslims and indigenous tribes. It also covers Palawan province in central Philippines.

Eid Kabalu, an MILF leader, said they are optimistic that the talks would lead to a peaceful solution to the Muslim secessionist problems in Mindanao.

“We have repeatedly said that we are for a peaceful solution of the problems in Mindanao. We have opened the door in order for the talks to push through and for both sides to arrive at a viable formula that will benefit us all, all for peace in Mindanao,” he said during a separate interview.

“We have been longing for the realizations and conclusion on the talks on ancestral domain and peace can now take off in our homeland,” Kabalu added.

Esperon largely credited the success of the talks to the efforts of the President to bring about peace in southern Philippines and the government and MILF peace panels, including the Cabinet and the Armed Forces of the Philippines for their support to the peace process.

“The President really worked hard for the peace talks to succeed and so did our soldiers who supported the primacy of the peace process,” he said, adding the peace panels would set a date for the formal signing of the agreement on the ancestral domain.

The agreement was reached more than a month after Mrs. Arroyo appointed Esperon as peace adviser replacing Jesus Dureza, now the Press Secretary. Esperon, a former military chief, last month vowed to pursue the peace talks with the MILF and sign a peace deal before the President’s term ends in 2010.

Mrs. Arroyo opened peace talks with the MILF, the country’s largest Muslim rebel group, in 2001, but there have been no major agreements to end the insurgency in the troubled region, except for a ceasefire accord.

But despite the truce, sporadic fighting between rebels and soldiers still continue in Mindanao with both sides accusing each other of violating the accord. In July last year, rebel forces killed 14 soldiers in a fierce battle on Basilan Island after security forces encroached inside an MILF stronghold while pursuing Abu Sayyaf militants tied to al-Qaeda.

The MILF is fighting for the establishment of a strict Islamic state in Mindanao, whose 16 million population include about 4 million Muslims.

Manila previously offered the MILF the Muslim autonomous region, which is composed of Lanao del Sur, Maguindanao, Basilan, Sulu and Tawi-Tawi which are among the poorest in the country and torn by strife and clan wars since its creation in 1989. The MILF flatly rejected the offer and insisted on self-determination.

Within the Constitution

Executive Secretary Eduardo Ermita said MILF should see the pledges are restrained by limitations imposed by the Constitution.

At present, he added, the government “can’t do much” about the apparent commitments. “But we promise to consider their demands once the debate on changes in the Constitution starts,” Ermita said.

Besides, he added, the informal talks in Malaysia are “doing well.”

Malaysia, which was brokering the peace talks in 2007, early this year pulled out from Mindanao about two dozen ceasefire observers. It cited the allegedly slow pace of the negotiations and blamed Manila for it.

Terrorist groups

Manila has accused MILF of coddling Abu Sayyaf and Jemaah Islamiah militants, who allegedly were behind spates of bombings and kidnappings in Mindanao, which the rebels denied.

The Jemaah Islamiah is Southeast Asia-based and linked to al-Qaeda. The Abu Sayyaf is a Muslim extremist group that was said to have broken away from MILF. The two radical groups are listed as foreign terrorist organizations by the US State Department.

The Malaysian truce observers deployed with the International Monitoring Team in southern Philippines had returned home and a small team is also expected to follow next month.

MILF had also warned the government that the pullout of the Malaysian observers would put the peace talks in jeopardy because of the Philippine military’s alleged violations of the truce agreement. Security officials denied the accusation and said rebels were attacking government troops without provocation.

It had called on its fighters to prepare for a “long struggle for freedom and right of self-determination,” pointing to continuing clashes with soldiers.

“The central leadership of the Moro Islamic Liberation Front has called on its members throughout Mindanao and Sulu to prepare for a long struggle for freedom and right of self-determination of the Bangsamoro people,” the rebel group said.

– Al Jacinto and Angelo S. Samonte

Edith Regalado
Philippine Star

DAVAO CITY – Suspected New People’s Army (NPA) rebels swooped down on a wood pole factory in the outskirts of Davao City and torched a crane Saturday night, police said.

Chief Superintendent Andres Caro II, Southern Mindanao police director, said at least seven armed men barged into the security post of Caraga Filchin Corp. in Barangay Lasang, Bunawan district at around 8 p.m. Saturday, overpowering the company’s two security guards.

Caro said the armed men broke the glass door of the company’s and destroyed certain items.

Before fleeing toward neighboring Panabo town, the raiders burned a crane worth more than P500,000, he added.

Caro said the company has been receiving extortion letters from communist rebels.

Maj. Armando Rico, spokesman of the Armed Forces’ Eastern Mindanao Command, said elements of the Army’s 73rd Infantry Battalion were pursuing the rebels believed to have sought refuge in the hinterlands of Davao del Norte.

In a related development, 30 families fled their homes as renewed hostilities erupted between NPA rebels and government troops in Veruela, Agusan del Sur last Saturday.

Reports said four guerrillas were killed and two others and a soldier, a certain Pfc. Reynante Sacote, were wounded in the skirmishes in Barangay La Fortuna, Veruela town.

Another encounter took place in Barangay Daywan, Claver, Surigao del Norte Saturday morning, leaving a certain Pfc. Anthony Budias wounded, according to police and military reports.

– With Ben Serrano

Philippine Star

DAVAO CITY – Suspected communist rebels stormed a mining company office and burned equipment, and fatally shot a policeman and wounded three soldiers in stepped-up attacks, police said yesterday.

New People’s Army (NPA) rebels, who quit peace talks four years ago to end their decades-long insurgency, locked up employees of the Philco Mining Corp. in Barangay Camanlangan in New Bataan, Compostela Valley on Tuesday and set fire to a generator and other equipment, said Chief Superintendent Andres Caro II, Southern Mindanao police director.

Caro said the attack was triggered by the company’s refusal to pay extortion demands to the rebels, who are considered terrorists by the United States and European countries because they target civilians and commercial establishments.

Civilian auxiliary units and the barangay police pursued the insurgents as they fled toward the neighboring town of Maragusan.

There were no casualties, but on Monday, police blamed the rebels for wounding three soldiers in Northern Samar during a two-hour gunfight.

Four suspected rebels shot dead a police sergeant who was securing a public market in Cateel, Davao Oriental Sunday, said SPO Ireneo Poblete.

He said the rebels fled on a motorbike with a caliber 9-mm pistol taken from the slain officer.

Last week, three people were killed and 11 wounded when the rebels lobbed a grenade at a bakeshop in Compostela Valley, reportedly after owners ignored their extortion letters.

The NPA guerrillas have carted away nearly 200 firearms from police and military installations in Southern Mindanao, the latest of which was the raid last week on the police station in Banay-Banay, Davao Oriental.

In a statement last week, the rebels said recent tactical offensives were meant to punish the administration of President Arroyo for “despicable crimes of large-scale corruption, imperialist plunder and fascist atrocities.”

The rebels, thought to be numbering about 5,000 to 7,000, have become more active in recent months, attacking remote military and police outposts to seize badly needed weapons.

The President has ordered the military to defeat them by the time she steps down in 2010.

– Edith Regalado and AP

Macon Ramos Araneta
Manila Standard

Party-list group Akbayan yesterday accused the New People’s Army of threatening its officers and members in Masbate, a day after engaging the militant Bayan Muna in a “word war” over a bill extending the agrarian reform program.

Akbayan leader Rep. Risa Hontiveros also blasted the NPA for allegedly colluding with the goons of landowners to thwart the farmers’ desire to own their land.

In a press statement, Hontiveros condemned the “veiled threat” made by the Masbate-based Jose Rapsing Command of the NPA against Akbayan members.

The lawmaker said the NPA wrote Akbayan a 12-page letter dated June 5 in response to a speech she delivered last March 10. In that privilege speech, Hontiveros called for a congressional inquiry into the killings perpetrated by the rebel group.

In the letter, the rebel group said it is just right for them to expose to the public the grave blunders and dangers of believing in the cause of Akbayan according to Hontiveros.

The NPA wrote: “Sa mga lugar na malinaw na sa mga tao na mali ang mga isyung dala-dala ninyo at nakapapanatili na rin ang Hukbo ay talagang hindi kami matutuwa o mapapalagay na nandoon pa kayo. [In places where it is already clear to the people that the issues you [Akbayan] are espousing are wrong, the armed group will not be happy that you will still be there].”

The letter was signed by a certain kasamang Luz del Mar, public information staff of the NPA-Jose Rapsing Command and noted by kasamang Adora Patria, Executive Committee member, CPP-Front 83-Masbate; kasamang Salvador del Pobre, pangkalahatang kumander, Jose Rapsing Command; and kasamang Val Silang, Prepcom-chairman.

Hontiveros stressed that Akbayan condemned in the strongest possible terms the NPA’s letter aimed to threaten democratic organizations like Akbayan, to create a culture of fear among people’s organizations and farming communities, and to warn against the pursuit of agrarian reform via Comprehensive Agrarian Reform Program.

“While in its essence, it is an admission by the armed group of the National Democratic Front [NDF] of the killing of Butchoy Vale, a peasant leader and barangay captain of Barangay Royroy, Masbate, beyond that, it, too, is a serious warning against those pursuing a path different from that chosen by the NPA,” Hontiveros said.

She branded the letter as consisting of blatant falsehoods to justify the cold-blooded execution of Vale in their hands as judge, jury and executioner.

Ted P. Torres
Philippine Star

Life insurance companies are against the imposition of new taxes as it would hurt the industry and the insuring public.

Already the country’s penetration rate is one of the lowest in the Asia Pacific region, but it plummets to between four to five percent if the mandatory coverage of the Government Service Insurance System (GSIS) and the Social Security System (SSS) is removed.

It is also estimated that a little over 20 percent of the country’s population have one type of life or personal accident insurance coverage.

“New taxes will only hurt the already-burdened insurance industry, and it will have a negative impact on Filipinos without insurance,” Lorenzo O. Chan Jr., president and chief executive officer of Pioneer Life Inc., said during the formal launching of its unique Sparx products.

Chan said that they are not only against Revenue Memorandum Circular 30-2008 (RMC 30-2008), which imposes new taxes on the country’s insurance industry.

Insurers are also for a reduction of the existing taxes including the five-percent premium tax on life insurance policies, and the documentary stamp tax (DST).

Earlier, the Philippine Life Insurance Association (PLIA) and the Philippine Insurance and Reinsurance Association (PIRA) issued joint and separate position papers commenting on the BIR ruling. They also called for its suspension if not revocation.

RMC 30-2008 among others imposes a DST not only on the group insurance certificates but also on the certificates issued to individual covered by the group insurance. “That makes the value of the individual policy even smaller if not worthless,” they said.

The BIR circular limits the cost of service to only claims, losses, maturities and benefits and excludes salaries, employee benefits, cost of facilities and supplies and other expenses incurred in running the business which are accepted under the Tax Code. It violates Section 27E of the Tax Code.

Insurance Commissioner Eduardo T. Malinis meanwhile confided that representatives from both the life and non-life insurance industry will be meeting with officials of the Department of Finance on the position paper earlier submitted by the industry organizations. However, no date had been arranged.

The finance department had informally asked the Bureau of Internal Revenue (BIR) to temporarily suspend RMC 30-2008. However, BIR officials said that the finance department must issue a department order before the circular can be suspended.

Pioneer Life was already forced to re-price its policies upwards last year to be able to cope with the tax environment as well as the poor investment climate in the past three years. Fortunately, it was able to introduce new products.

Chan said that the Sparx products is a micro-insurance product that follows the sachet concept. It is also designed to introduce savings and insurance protection to the youth.

“It is a bite-size insurance product that is affordable and simple to acquire,” the Pioneer Life chief executive said, adding that for a minimum of P100, a child can get insurance protection. It can also be increased by buying additional cards for the same value or as much as P5,000.

It comes in a scratch card much like Internet or mobile phone cards. And registration is just a half page process either through the Internet, through mail or simple traditional forms.